Oral reasons were provided by the Appeal Panel in this matter. These reasons have been provided following a request for written reasons from the respondent.
The appellant appeals a decision of the Tribunal relating to an application by the respondent about a building claim. The appellant is the builder and the respondents are the homeowners. Mr Mohamed Shelbaya, a site manager, appeared for the appellant and Mr Nigel Saunders, the respondent's father, appeared for the respondent homeowners.
On 1 March 2018 the homeowner made an application to the Tribunal pursuant to the Home Building Act 1989 (NSW) seeking damages in relation to a building claim. By the time the matter came to final hearing, the claim was amended to include a garage wall not being built in accordance with the plan. That is the only issue that the appellant now challenges on appeal.
On 2 November 2018, the Tribunal made a work order (order 4), that the builder rectify the defective garage so that it complied with the contractual plans. The appellant appealed the decision of the Tribunal on 1 February 2019.
A party has 28 days from notification of the decision to file an appeal. The appeal had been filed outside the relevant time period required by r 25 of the Civil and Administrative Tribunal Rules 2014 (NSW) and was made some 62 days after the decision was made. Internal appeals may be made as a right on a question of law and otherwise with leave of the Appeal Panel (see s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW).)
The only ground raised by the appellant is that they seek leave to Appeal on the basis that significant new evidence is now available that was not reasonably available at the time of hearing. That evidence is an expert's report which the appellant now alleges states that the garage could never have amounted to a tandem garage even if it had been built in accordance with the plans and accordingly there could not have been any loss of amenity found by the Tribunal.
Nationwide Builders Pty Ltd v Saunders [2019] NSWCATAP 190 | Case summary | Zoe
The appellant requires an extension of time to appeal. The appellant states that they were not aware they could appeal the decision until they received notice from a building consultant that the garage could never have been a tandem garage. They also allege that it was extremely difficult for them to find a building consultant for the case.
In determining an extension of time we refer to the principles set out in the Appeal Panel decision of Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 and in particular to the issues identified at para 22 of that decision, that is, we have considered the length of the delay, the reasons for the delay, the prospects of success and the prejudices that have been suffered by the respondent. We have also considered the merits of the appeal.
Having considered the submissions of the parties and the issues identified in Jackson v NSW Land and Housing Corporation, we are not satisfied to extend time for the lodging of the appeal or grant leave for the appeal for the reasons that follow.
Firstly, the work order that was made by the Tribunal required that the builder undertake the works by 31 January 2019. The appeal itself did not come until the following day, on 1 February 2019. The appellant was on notice as soon as it received the orders that they needed to undertake the work orders. In those circumstances it is difficult to understand why they delayed until after the expiration of a Tribunal order to appeal. There is also evidence that the parties were in negotiation during this period and there was no indication that there was an appeal to be lodged or that the appellant was looking for an expert.
Secondly, the new expert report that has been provided states that the expert himself was not instructed until 6 March 2019. We understand from the submissions of the appellant that they had tried other experts, but the appeal notice states that there had been some delay because of the festive season and difficulty in finding an expert. There is no detail of what steps were taken to locate an expert and when they were taken. We are mindful of previous directions of the Appeal Panel where the appellant was seeking an extension of time to provide a report where it was directed that the appellant put on affidavit or statutory declaration evidence explaining what steps had been taken to get an expert's report. That has never been provided. In those circumstances it appears to us an unsatisfactory explanation that they have not been able to find an expert prior to certainly the Appeal Panel hearing date or, more importantly, the Tribunal date.
Thirdly, the parties have been involved in related litigation and the director of the appellant Corporation has previously advised in August 2018 the homeowner's father that he is aware of the appeal process. While submissions were made and we accept that they were not aware of this particular appeal ground, we are not satisfied that the appellant at least was not unaware of its rights to appeal. More significantly, the appellant has not provided a satisfactory reason for why they did not obtain the expert evidence they now rely on earlier and, more particularly, prior to the hearing before the Tribunal.
The appellant alleges they were not aware that this garage could never have been a tandem garage, yet the expert report of Mr Capaldi which was before the Tribunal clearly addresses at item 35 the restricted use of the garage. The appellant acknowledged that they had failed to get their own expert report prior to the hearing, had not asked for an extension of time or adjournment to get the report, but rather had made the forensic decision not to obtain a report. In those circumstances we are not satisfied that the material could not have been reasonably obtained before the hearing; rather the appellant chose not to obtain it. In those circumstances this is not significant new evidence that was not reasonably available to the appellant prior to the hearing and accordingly we would find a substantial miscarriage of justice.
We also find that there is a prejudice to the respondent if we were to grant this appeal. The respondent has gone to some efforts in preparation to respond to this appeal and we also accept that given the lateness of obtaining an expert report by the appellant, if we were to grant an extension of time that would create a prejudice to the respondent.
Accordingly, an extension of time to appeal is refused, leave to appeal is refused and the appeal is dismissed.
[2]
Costs
We have come to a decision in relation to the costs. We are particularly mindful of the Appeal Panel decision of The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256. This was a case where at first instance the claim was for more than $30,000 but in regard to the issues claimed on appeal that is under $30,000. Regardless of whether or not s 60 Civil and Administrative Tribunal Act 2013 (NSW) or r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) applies, we are satisfied that there would be special circumstances to warrant the making of a costs order in this appeal.
Firstly, that the appeal itself was made out of time and as we have stated, there was minimal and unsatisfactory explanation for the delay in making the appeal and certainly there was a lack of any supporting evidence to support the claim for those delays. Secondly, the appeal itself lacked merit and, thirdly, the proceedings were conducted in a way that did disadvantage the respondent. There were no submissions from the appellant in the documents, contrary to the directions of the Appeal Panel. Rather submissions were articulated at the appeal hearing. Secondly, the appeal ground itself was not properly constructed until we were at the hearing, being that there was evidence that was not reasonably available at the time, and the actual ground that was noted in the appeal itself, being against the weight of evidence, was not pressed at the hearing.
In those circumstances we are satisfied that there are special circumstances in this case that warrant the making of a costs order. However, we are only satisfied to allow costs for the following two items: The first is the cost of obtaining the sound recording of $42 and the second is the cost to have the sound recording transcribed for the appeal hearing being an amount of $349.06.
We will not make an order for the costs of the report and the costs of the expert witness to be at the appeal hearing. In relation to the witnesses, there was no specific direction to the parties or requirement for the expert witness to be at the hearing today. We accept that the respondent had a belief based on previous hearings in the Tribunal that they required the witness to be at the appeal hearing, but certainly there was no direction that the witness was required to be here today in relation to the Appeal Panel proceedings.
Secondly, in relation to the costs of the site inspection by Tyrrells Property Inspection again it was put to us by the respondent that they believed that they needed that in order to address the report that was put by the appellant. We are not satisfied on those grounds that that the report was required and we have not allowed the costs of the report.
We make a costs order for an amount of $391.06.
[3]
Orders
Accordingly, we make the following orders:
1. Leave to extend time for the Appeal is refused.
2. Leave to Appeal is refused.
3. The appellant is to pay the respondent's costs of $391.06 immediately.
4. The Appeal is otherwise dismissed.
[4]
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: 26 July 2019