Olsen v Lee

Orders sought

1. In the notice of appeal the appellant asks the Appeal Panel to:

• stay the order of the Tribunal of 23 May 2014;
• set aside the order of the Tribunal of 23 May 2014;
• order the respondents pay her costs of the HB proceedings in the sum of $15,162.32. In her submissions the amount now sought is $23,813; and
• order the respondents to pay her costs of the application for leave to appeal on a gross sum basis.

1. We note that in the submissions filed 13 October 2014 the appellant indicated that she no longer wished to pursue a costs order against the second respondent.

Background

1. It is useful to set out a short history of this matter. The appellant, and her then husband, owned a property in Lindfield. They wished to redevelop the property. Her then husband obtained an owner/builder license to undertake the redevelopment. After construction was completed the now two properties were respectively sold, to the first respondent in 2007 and the second respondent in 2009.
2. Complaints were subsequently made about the building works, and in 2012 the HB proceedings were commenced. In each matter the respondents included the appellant and her then husband.
3. The appellant was removed as a party to the HB proceedings on 7 June 2013 at her request.
4. On 13 December 2013, by consent, the Tribunal dismissed the HB proceedings, the first and second respondents having agreed to enter into a building contract with MacDonald Contracting Pty Ltd for building works to be undertaken in respect of the properties. This effectively resolved the issue between the parties concerning the building dispute and since that time the rectification works have been undertaken. The HB proceedings were to be listed for argument on costs.
5. The appellant submits that, although she was removed as a party to the HB proceedings on 7 June 2013, it was not until "well after" the HB proceedings were dismissed on 13 December 2013 that she became aware of her right to make an application for costs against the first and second respondents, "as a result of being improperly joined as a respondent" in the HB proceedings. She submits that before being removed as a party to the HB proceedings she had unfairly incurred "not insignificant costs and had been put to considerable inconvenience".
6. Consequently, on 9 May 2014, the appellant filed proceedings HB 14/24744, the subject of this appeal. As the decision of 23 May 2014 makes plain (see paragraph [26]), the appellant (the applicant in those proceedings) commenced proceedings HB 14/24744 as a new home building claim in which she sought costs which she alleged were incurred in the HB proceedings. The appellant sought costs in the sum of $1,512.32 on the basis she had been wrongly joined as a respondent in the HB proceedings.
7. At the hearing on 23 May 2014 the appellant sought to be represented by counsel. The Tribunal refused that application for leave and counsel formally withdrew, but counsel and assisted the appellant with the submissions that she made.
8. In summary the Tribunal found that the application had not enlivened the jurisdiction of the Tribunal as it was not a Home Building application, but simply sought costs in the HB proceedings. As noted above the Tribunal also considered that the application was frivolous and vexatious.

Leave to appeal - principles to be applied

1. The Civil and Administrative Tribunal Act 2013 (the Act) sets out the basis upon which appeals from decisions of the Consumer and Commercial Division of the Tribunal can be made. Under s80 of the Act an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s80(2)(b)).
2. An Appeal Panel may grant leave only if satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal was not fair and equitable; or 2. the decision of the Tribunal 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).
3. The expression "substantial miscarriage of justice" was considered by an Appeal Panel of the Tribunal in Collins v Urban [2014] NSWCATAP 17, and summarized at [71] and [79] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred."
4. The general principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted were also set out in Collins v Urban, at [84]: The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) 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.
5. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act: Pholi v Wearne [2014] NSWCATAP 78 at [32].

Consideration

1. As noted above leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
2. The appellant raises five main arguments in her application for leave. We shall deal with each in turn. In summary we do not consider any matter raised by the appellant individually, or the matters cumulatively, raise any of the matters identified in Collins v Urban was warranting a grant of leave.
3. Time to respond The appellant submits that the Tribunal did not afford her a reasonable time to respond to the issue of jurisdiction. As noted above, while the appellant was refused leave to be represented by counsel, her counsel remained in the hearing room to assist her. Paragraph [27] of the reasons for decision demonstrate that the appellant participated in discussions about jurisdiction.
4. Representation by counsel The appellant submits that the Tribunal erred in law and did not act fairly or equitably by refusing leave to her to be represented by counsel despite the respondents being legally represented. The Tribunal's reasons do not record why the appellant was not granted leave to be legally represented in circumstances where the respondents were. Presumably the third respondent was legally represented as it is a firm of solicitors. While the situation is unusual, as noted above, the appellant's counsel remained in the hearing room to assist her. We have now had the benefit of her counsel's submissions and in our view nothing turns on this point, the Tribunal being clearly correct in its decision.
5. Characterisation of proceedings The appellant submits that the proceedings were "in substance" the exercise of the appellant's unexercised right to apply to costs pursuant to s.53(2) of the CTTT Act that could follow the abolition of the Consumer Trader and Tenancy Tribunal, and that her application in proceedings HB 14/4744 was "in effect an interlocutory application for costs" in the HB proceedings (see paragraph [3] of the appellant's submissions filed 5 November 2014). Accordingly the appellant submits that the Tribunal erred in not permitting her to pursue proceedings HB 14/24744.
6. This ground of appeal is misconceived. The HB proceedings were dismissed on 13 December 2013 (save for the limited right for the proceedings to be restored to the list in the event that the orders of 13 December 2013 were not complied with), the appellant having ceased to be a party on 7 June 2013. The HB proceedings were no longer "pending proceedings" for the purposes of the transitional provisions of the Act following the abolition of the Consumer Trader and Tenancy Tribunal.
7. Application out of time The appellant submits that the Tribunal erred in law because in finding it had no jurisdiction, "the Tribunal considered that the appellant had made her application out of time". This ground of appeal too is also misconceived. The Tribunal's reasons for decision did not in terms consider that the appellant's application was out of time.
8. Frivolous and vexation application The appellant submits that Tribunal's decision that the appellant's application was frivolous and vexatious erred in law as there were no grounds on the facts before the Tribunal or any basis at law upon which the Tribunal could come to that conclusion. We disagree. The Tribunal clearly identified the correct authorities governing this issue, and we discern no error in the Tribunal's reasoning or conclusion.
9. In summary we emphasise that the appellant was present at the hearing at which the decision appealed from was made. Although the Tribunal did not allow her to be represented by counsel, her counsel was present and assisting her. The appellant had been removed as a party to the HB proceedings at her request on 7 June 2013, and the HB proceedings were effectively then dismissed on 13 December 2013. Any application for costs, by any party, needed to be made in those proceedings. Indeed, as the orders of 13 December 2013 make clear, the HB proceedings were subsequently to be listed for argument on costs.
10. In the circumstances the Appeal Panel is not satisfied that, in the circumstances, the appellant may have suffered a miscarriage of justice. In our view the Tribunal was correct in its decision to dismiss the application.
11. Each respondent seeks an order that the appellant pay their costs. In this jurisdiction costs are only ordered in special circumstances. We are not satisfied that the present circumstances justify such an order. There is to be no order as to costs.

Orders

1. The Appeal Panel makes the following orders: 1. The application for leave to appeal is dismissed. 2. The appeal is otherwise dismissed. 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. Principal 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: 24 February 2015