The Appellant seeks to appeal against an order of the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal (the Tribunal) made on 7 and 8 April 2014, that he pay the Respondents $93,852.12, together with costs as agreed or assessed. In addition, he seeks to appeal against the order dismissing his claim for moneys outstanding under a contract for works done and material provided. For the Reasons that follow, the Appeal Panel has determined, to the extent necessary, to refuse leave to appeal and otherwise dismiss the appeal.
[2]
INTRODUCTION
The Respondents are owners of a house in a Sydney suburb ("the Residence"). The application to the Tribunal arose as a result of an application brought by the Respondents against the Appellant, a building contractor, in respect of the performance of residential building work in the construction of additions to the Residence. The Appellant also claimed for moneys alleged to have been outstanding under the contract for works done and materials provided.
The matter was set down for hearing for on 22 January 2014, more than two months before the date fixed for hearing. The Appellant was aware of the date of the hearing. On the Friday the last business day before the hearing, the Appellant informed the Tribunal by letter that he had attempted to engage a solicitor. The Appellant made his first attempt to engage the solicitor the week before the hearing. The letter listed unavailable dates of the solicitor, which unsurprisingly, given the proximity between engagement and the hearing, included the two dates of the hearing.
There was no appearance on the first day of the hearing, 7 April 2014, by either the Appellant or anyone on his behalf to seek an adjournment (one not having been granted in response to the letter sent to the Tribunal) or to conduct the hearing. Accordingly the matter proceeded on that day in the absence of the Appellant.
The Appellant appeared at the Tribunal hearing on the second day of the hearing, 8 Aril 2014, and sought an adjournment so that a solicitor could represent him.
The application was opposed. The Respondents noted that an order for legal representation had been made on 26 March 2013 and that as early as 14 November 2013, when the matter was listed for directions, the Appellant had indicated then that he was considering engaging a solicitor to represent him.
The Appellant explained his delay in engaging a solicitor, stating that he was "looking for a good solicitor that can present the case" and who "would understand what the case was about". He had no explanation as to why he chose a solicitor unavailable on the days appointed for the hearing.
The Tribunal found Appellant's explanation for his delay in engaging a solicitor to be unconvincing and declined to grant an adjournment. The Appellant remained at court and presented his case. This included the cross-examination of witnesses and the presentation submissions by the Appellant.
On 29 April 2014 Member S F Smith delivered his decision, making orders that the Appellant pay to the Respondents $93,852.12 plus costs as agreed or assessed. The Member dismissed the Appellant's claim. The costs order was stayed for 21 days to allow time for the parties to make submissions.
[3]
GROUNDS OF APPEAL
The Appellant filed a Notice of Appeal on 27 May 2014, precisely 28 days after being on notice of the Decision. The Respondents accept that the appeal was lodged within time.
The Appellant seeks leave to appeal pursuant to s 80(2) of the Civil and Administrative Tribunal Act (the Act) on the basis that there has been a substantial miscarriage of justice on the following grounds:
1. The judgment sum awarded against the Appellant is higher than the amount claim in the application by the Respondents;
2. The original decision of the Tribunal is not fair and equitable because the Appellant was not granted an adjournment allowing him to be legally represented, in circumstances where the Respondents were legally represented and were given prior notice of the adjournment application;
3. The decision of the Tribunal under appeal was not fair and equitable because the hearing was commenced in the absence of the Appellant and as such the Appellant's case was not adequately put to the Tribunal;
4. The decision of the Tribunal under appeal was against the weight of the evidence. Sufficient weight was not given to the evidence of the Appellant and there are prima facie irregularities in the judgment and the judgment sum.
On about 22 July 2014 the Appellant filed an amended Notice of Appeal, citing 36 grounds of appeal, but in respect of which grounds 1, 17, and 26 were deleted. Grounds 2, 4, 6, 7-16, 19-25, 27, 29, 31, 34 and 36 had been added to the initial Notice of Appeal.
At the hearing before the Appeal Panel the Appellant moved on the amended Notice of Appeal dated 22 July 2014, however, at that time, it was indicated that grounds 6-11, 13-16, 30, 32, and 34, were no longer pressed. Accordingly the final grounds of appeal were as follows, many of which are repetitious:
1. The Tribunal Member erred in not granting an adjournment to the Appellant, allowing him to be legally represented, in circumstances where the Respondents were legally represented and had prior notice of the adjournment application;
2. By reason of the refusal of an adjournment by Tribunal Member Smith, the Appellant was denied procedural fairness;
3. The Tribunal Member erred in commencing to hear the matter on 7 April 2014, in the absence of the Appellant;
4. The Tribunal Member erred in failing to be satisfied that the Appellant's licence conditions restricting him to small jobs had been lifted;
5. The Tribunal Member erred in not giving sufficient weight to the evidence of the Appellant;
6. The Tribunal Member erred in holding that the report of Mr Scott, was to be accepted above and beyond the evidence by the Appellant;
7. The Tribunal Member erred in giving undue weight to the report of Mr Scott;
8. The Tribunal Member erred in holding that on an ordinary interpretation of the contract between the parties, the contract was for a "fixed price labour and materials in the normal way";
9. The Tribunal Member erred in not holding that on the proper interpretation of the contract between the parties, the contract was not for a "fixed price labour and materials in the normal way";
10. The Tribunal Member erred in holding that the contract did not specify that the homeowners were to provide materials;
11. The Tribunal Member erred in not holding that the contract did specify that the homeowners were to provide materials.
12. The Tribunal Member erred in failing to hold that on the proper interpretation of the contract between the parties, the contract was for the project management of the works and did not include the costs of any material;
13. The Tribunal Member erred in drawing an adverse inference against the Appellant in accordance with the principles pursuant to the case of Jones v. Dunkel: Decision at [21];
14. The Tribunal Member erred in failing to not draw an adverse inference against the Appellant in accordance with the principles pursuant to the case of Jones v. Dunkel;
15. The Tribunal Member erred in holding that as a matter of law the Respondents were entitled to be put in the position they would be in if the contract had been "performed according to its terms": Decision [22];
16. The Tribunal Member erred in failing to give reasons in concluding that the Respondents were entitled to compensation from the Appellant for the extra costs to them of the finished job: Decision [23];
17. The Tribunal Member erred in calculating and awarding the judgment sum of $93,852.12, being the sum payable by the Appellant to the Respondents;
18. The Tribunal erred in dismissing the Appellant's cost-claim;
19. The Tribunal Member erred in failing to give reasons in dismissing the cross-claim of the Appellant as against the Respondents.
[4]
NOTICE OF REPLY
The Respondents' Reply to the Amended Grounds of Appeal traverses the Appellant's Amended Notice of Appeal, denying in respect of each ground any error on the part of the Tribunal Member.
[5]
Leave to Appeal
As to whether the Appellant should be granted leave to appeal, where the decision appealed from was made by the Consumer and Commercial Division of the Tribunal, under cl 12(2) of Schedule 4 of the Act, the Appeal Panel's discretion to grant leave is only enlivened if the Appeal Panel is satisfied that the Appellant may have suffered a substantial miscarriage of justice because:
1. The decision of the Tribunal was not fair and equitable;
2. The decision of the Tribunal was against the weight of the 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).
What constitutes a substantial miscarriage of justice was discussed, albeit in the context of s6(1) of the Criminal Appeal Act 1912 (NSW) which is in similar terms, by the High Court in Mraz v. The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514.
It [the proviso] ought to be read, and it has in fact always been read, in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice.
Accordingly, 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: Collins v. Urban [2014] NSACATAP 17 at [71] (Collins v Urban).
If the Appeal Panel is satisfied that the Appellant may have suffered a substantial miscarriage of justice on one of the grounds referred to in cl 12, the Appeal Panel may grant leave: s 80(2)(b) of the Act. Accordingly, once the discretion is enlivened, the Appeal Panel is to determine whether to grant leave. In deciding whether or not to do so, 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 must be established. Ordinarily it is appropriate to grant leave only in matters that involve:
1. Issues of principle;
2. Questions of public importance or matters of administration or policy which might have general application;
3. 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;
4. A factual error that was unreasonably arrived at and clearly mistaken; or
5. The Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way tat it was likely to produce an unfair result so that it would be in the interest of justice for it to be reviewed.
See Collins v Urban at [84].
[6]
Grounds 1 to 4 - Failure to Grant the Adjournment and Proceeding in the Appellant's Absence
The Appellant contends that the Tribunal Member erred in not granting an adjournment to the Appellant, allowing him to be legally represented, in circumstances where the Respondents were legally represented and had prior notice of the adjournment application. He contends that by reason of the refusal of an adjournment by the Tribunal Member, the Appellant was denied procedural fairness. He also contends that the Tribunal Member erred in proceeding in the Appellant's absence. The Appellant contends that the error was twofold in that the Tribunal Member did not adjourn the matter when the Appellant failed to appear on the first day of the hearing and that he did not adjourn the matter, on the second day, on application of the Appellant, so that he could obtain legal representation and cross-examine the Respondents' expert. The Appellant contends that he ought to have been afforded increased flexibility in this regard, particularly as he was unrepresented. The Appellant contends that the lack of flexibility afforded to his client in respect of these procedural matters "frustrated requirements for procedural fairness".
The Respondents contend that there is no basis upon which it can be asserted that the decision to not grant the adjournment and to proceed in the Appellant's absence was not fair.
The Appeal Panel finds that the parties had been granted leave to be legally represented as early as 26 March 2013 and that the Appellant was aware of that fact. On 14 November 2013, the Appellant confirmed before the Tribunal his intention to obtain legal representation. A notice of hearing was issued on 22 January 2014, appointing a hearing date of 7 and 8 April 2014. There was no indication from the Appellant at any time that the hearing dates were unsuitable.
The Appellant did not seek legal representation until 4 April 2014, one business day before the hearing. In those circumstances, it was almost inevitable that he would not be able to obtain the appropriate representation for the hearing. The Appellant did not write to the Tribunal until about 5pm on Friday 4 April 2014, indicating his solicitor's inability to attend at the hearing on the following Monday.
Even if this letter constituted a sufficient application for an adjournment, there was no indication from the Tribunal that the adjournment had been granted and in those circumstances it was incumbent upon the Appellant to appear on 7 April 2014 to pursue the application or to proceed with the hearing.
The Appellant did not appear on 7 April 2014. The Tribunal Member, correctly in the Appeal Panel's view, asked Mr Atkinson, who appeared for the Respondents, to telephone the solicitor named in the Appellant's adjournment application. It appears from the transcript that the solicitor was on the phone and Mr Atkinson left a message that the matter was before the Tribunal and for her to return his call. The Tribunal Member, again fairly and correctly, allowed half an hour or so for her to do so. During that time, the solicitor rang, indicating that she had "just been instructed" and that she was unavailable to appear either on that day or the following day. The solicitor indicated that she would be available to speak to the Tribunal Member on the telephone. However, when the Tribunal Member rang at about 9.45am the receptionist indicated that the solicitor was with a client and would not put the call through. The Tribunal Member stated to the receptionist that he proposed to commence the hearing on that day.
The Appellant did not appear at all on 7 April 2014 and the matter proceeded in his absence. There was no explanation given by the Appellant for his failure to appear or for the failure of anyone to appear on his behalf.
The Respondents were ready to proceed, with three available lay witnesses and their expert witness on standby. The Respondents had taken two days of their annual leave to attend the hearing
In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, the Court when considering s56(1) of the Civil Procedure Act 2005 said:
In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice.
Section 36(1) of the Act is in relevantly identical terms to s 56(1) of the Civil Procedure Act 2005 and as such the same principles apply to this case.
In Donna O'Neill v. T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22] and [23], the Appeal Panel made clear the principles that apply to applications for an adjournment as follows:
22 It follows that a number of principles apply to applications for an adjournment:
(1) matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above,
(2) an application for an adjournment should be seen as the exceptional rather than the ordinary course;
(3) where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment
23 Further, there is the effect on the opposing party to consider. In Sayhoun v Owners Corporation Strata Plan 75123 [2014] NSWCATAP 112, an Appeal panel of this Tribunal said at [17], in terms we would adopt:
"We are satisfied that the respondent would be prejudiced if an extension of time were granted. That prejudice may be addressed by an award of costs, although we note the remarks of the plurality in Aon Risk Services Aust Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [100] that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants; and their approval (also at [100]) of Bowen LJ's statement in Cropper v Smith [1884] 26 Ch D 700 that: Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary."
The decision to grant an adjournment is a discretionary one. The Tribunal Member was required to and did take into account the interests of not only the Appellant but also the Respondents who had prepared their case for hearing, had engaged legal representation to appear, had secured the attendance of witnesses and had taken annual leave to attend the hearing. Against that, the Appellant had apparently made no real attempts to prepare his case with the assistance of legal representation (although he had foreshadowed some months beforehand that he would do so), made no attempt to attend at the hearing on the first day and gave no explanation for his delay in attempting to obtain legal representation, such that none was available. It was open to the Tribunal Member to refuse to grant the adjournment. The Tribunal Member did all he could reasonably do in the circumstances to put the Appellant on notice that the matter would proceed and in those circumstances no error has been established.
Furthermore, despite the Appellant being absent on the first day of the hearing, there was no denial of procedural fairness in the Tribunal Member not adjourning the proceedings. The Appellant was aware that the matter was listed for hearing on 7 April 2014. Although he had sought an adjournment by letter, he knew that he had not obtained an adjournment and that he had no solicitor to appear for him on that day. In those circumstances, he took the risk that in not appearing, the matter would be heard in his absence. Furthermore, when he did appear on 8 April 2014, there is no suggestion that he was precluded from asking any questions and making submissions in the case. Certainly he had lost the advantage of not being present on the first day of the hearing, but the Appeal Panel is not satisfied that his presence on the first day would have made a material difference to the outcome of the hearing.
A failure to accord procedural fairness is an error of law, in respect of which leave to appeal is not required. As Deane J. said in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 367:
If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably ... When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.
The Appellant has, in any event, made an application for leave to appeal.
The Appeal Panel finds that the Tribunal Member accorded the Appellant procedural fairness in determining the adjournment. To the extent it is required, leave is refused in respect of this ground of appeal and otherwise this ground of appeal is dismissed.
[7]
Ground 5 - the finding in respect of licence restrictions
The Appellant contends that the Tribunal Member erred in failing to be satisfied that the Appellant's licence conditions restricting him to small jobs had been lifted.
The Tribunal had before it a search of NSW Fair Trading's records which showed that the Appellant was not licensed to take on building work which required home owner warranty insurance: Decision [12]. The Respondents conceded before the Tribunal that the evidence was out of date but used it to support a submission that the Appellant had limited building experience.
The Tribunal member referred to the fact that he was "far from satisfied that the licence condition restricting [the Appellant] to small jobs had been lifted": Decision 18. It was open to the Tribunal to find that once the Respondents tendered the limitation on the licence, the evidentiary onus had shifted to the Appellant to prove that the limitation had since been lifted and that the date of the search was critical, and that this evidentiary onus had not been satisfied by the Appellant. In any event, the Appeal Panel is of the view that nothing turns on this remark in circumstances where the Tribunal found that the Appellant had terminated the contract without cause.
Accordingly, to the extent to which leave is required, leave is refused in respect of this ground of appeal. The ground of appeal is otherwise dismissed.
[8]
Ground 6 - the weight to be attributed to the Appellant's evidence
The Appellant contends that the Tribunal Member erred in not giving sufficient weight to the evidence of the Appellant. This is a matter in which the Tribunal Member had the advantage of seeing the Appellant and the other witnesses give evidence.
The Tribunal Member gave detailed reasons for accepting and rejecting the evidence he did.
The findings by the Tribunal Member at [19] and [20] were open to him and no error is identified.
Accordingly, to the extent to which leave is required, leave is refused in respect of this ground of appeal. The ground of appeal is otherwise dismissed.
[9]
Grounds 7 and 8 - the expert evidence
The Appellant contends that the Tribunal Member erred in holding that the report of Mr Scott tendered by the Respondents, was to be accepted above and beyond the evidence by the Appellant and that he erred in giving undue weight to the report of Mr Scott.
In doing so, the Appellant contends that as Mr Scott was not provided with a copy of the building contract nor of the plans, and he was in no position to express an opinion as to the defects identified in the building works. It is not in issue that the report of Mr Scott is based on his examination of the partially completed building works and that he did not have a copy of the contract or plans.
However, as the Respondents gave evidence with reference to the contract and the plans, it was not necessary for Mr Scott to refer to them. It was a matter of Mr Scott identifying what he regarded as defects and then for the Tribunal Member to assess that evidence with respect to the contract and plans in order to determine whether or not the defects identified were in respect of works to be performed by the Appellant in accordance with the contract and the plans.
The Appellant raised this matter for the first time by way of submission to the Tribunal Member following the conclusion of the cross-examination of Mr Adami. However, the Appellant did not challenge either of the Respondents on this issue.
The Appellant contended that works identified by Mr Scott as defects had been altered by work done after the Appellant had left the site and that there was evidence from him that he did not do parts of the works. Mr Maghami, who appeared for the Appellant, referred the Appeal Panel to pages 69 and 70 of the transcript. However a review of that part of the transcript only reveals a submission by the Appellant that something "could have happened to that site" after he left.
Accordingly the Tribunal Member was entitled to find that the defects identified by Mr Scott were those created by the Appellant when performing work under the contract.
The Appellant now seeks to rely on Makita (Australia) Pty Ltd v. Sproules [2001] 52 NSWLR 705; [2001] NSWCA 305 in submitting that the report of Mr Scott ought not to have been accepted or that it ought be given no weight.
There are, however, a number of difficulties with that submission. First, the rules of evidence do not apply to the Tribunal in respect of the receipt of expert reports. As a matter of fairness, the evidence proffered in the report needs to identify the defects and explain why they require rectification. The report of Mr Scott did precisely that. Further, the Appellant before the Tribunal did not object to the report and as such, it was properly before the Tribunal Member as evidence if the hearing had been conducted pursuant to the rules of evidence: s.190 Evidence Act 1995.
The Appellant also contends that there was a denial of natural justice in Mr Scott not being available for cross-examination. It is noted however, the Mr Scott was available on the first day of the hearing and that had the Appellant appeared on that day, he could have cross-examined Mr Scott. Secondly it is noted that the Appellant was informed that the expert report had identified defects in the building work. However, the Appellant did not apply to cross- examine Mr Scott, but rather proceeded directly to submissions in respect of his conclusions. Had he sought to do so on 8 April 2014, it is likely that the application would have been refused given that Mr Scott had been available on 7 April 2014 but was no longer available to appear and an opportunity to do so on 7 April 2014 had been lost due to the Appellant's unjustified non-appearance on that day. However, it remains the case that the Appellant did not make such an application. In these circumstances, we are not satisfied that there was any lack of procedural fairness in Mr Scott not being available for cross-examination on 8 April.
Finally the Appellant contends that the Tribunal failed to give reasons for its acceptance of Mr Scott's expert report. However it is noted that no objection was taken to the report and that Mr Scott was not cross-examined. The Appellant did not lead any independent expert evidence in response, but rather relied on his own evidence. The Tribunal found, as it was entitled to do, that the evidence of the Appellant was not independent and was often in respect of matters of marginal relevance. The Tribunal was also entitled to find on the evidence that the expert report tendered by the Respondents set out in full each of the defects. It is noted that the Tribunal gave examples of where this was so: Decision [19].
Accordingly, to the extent to which leave is required, leave is refused in respect of this ground of appeal. The ground of appeal is otherwise dismissed.
[10]
Grounds 9 to 15 - Whether the contract was for a fixed price and the Jones v Dunkel inference.
The Appellant contends that the Tribunal erred in finding that the contract was for a fixed price for labour and materials, and in accepting the Respondent's evidence that the reference to the provision of materials by the Respondents was not included in the contract when it was signed.
The Respondents contended that the contract signed by them did not have the words "materials" and that words were added by the Appellant after the contract was signed and, as such did not form part of the agreement between the parties.
The Tribunal Member held that the "parties are bound by an ordinary interpretation of the written contract" and that it "provided for a fixed price labour and materials project". The Tribunal member also accepted the Respondent's evidence that the original contract did not specify that the homeowners were to provide materials and that this was added after they signed the document. The Tribunal Member drew an inference adverse to the Appellant in light of his failure to produce at hearing, the original contract, although it was originally in his possession and in light of no explanation for its non-production having been provided.
The Tribunal was, on the evidence of the Respondents, entitled to make that finding and the Jones v. Dunkel inference was open to it. However, in light of the Respondents' evidence that the term was not included in the contract, the failure by the Appellant to produce the original and the adverse inference that flowed made no material difference to the outcome.
The interpretation of the contract was open to the Tribunal Member on the evidence and no other error is identified.
Accordingly, to the extent to which leave is required, leave is refused in respect of this ground of appeal. The ground of appeal is otherwise dismissed.
[11]
Grounds 15 to 17 - Rectification and compensation
The Appellant contends that the Tribunal Member erred in holding that as a matter of law the Respondents were entitled to be put in the position they would be in if the contract had been "performed according to its terms": Decision [22].
The Appellant also contended that the Tribunal Member erred in failing to give reasons for concluding that the Respondents were entitled to compensation from the Appellant for the extra costs to them of the finished job: Decision [23].
The Tribunal found at [18] that the Appellant terminated the contract in circumstances in which he was not entitled to do so. Accordingly, the finding at [22] regarding completion costs is uncontroversial in light of the Tribunal's further finding that the contract was a fixed price contract for works to be performed, which were either not performed or which were the subject of defects.
The Tribunal was entitled to make orders for damages that would conform with the contract for works and materials and for reasonable rectification and completion works, which it did. No other error has been identified. The above two grounds raise questions of law, in respect of which leave is not required. This ground of appeal is dismissed.
The Appellant also contends that the Tribunal erred in calculating and awarding the judgment sum of $93,852.12.
One of the Respondents, Mrs Adami, gave evidence of the payments made by the Respondents, the costs to complete incomplete works and the costs to rectify defective works. It is noted that there was little if any cross-examination of the Respondents challenging them on the amounts paid and the cost of rectification works. As noted above, there was no cross-examination of Mr Scott.
We are satisfied that the Tribunal's reasoning at [23] is sound. The calculation itself is correct and was not challenged before the Appeal Panel.
Accordingly the finding made was open to the Tribunal and to the extent to which leave is required, leave is refused in respect of this ground of appeal. The ground of appeal is otherwise dismissed.
[12]
Grounds 18 and 19 - Dismissal of the cross-application and failure to give reasons.
The Appellant's application (the cross-application) sought the sum of $28,191.86 for "value of work done", "premature termination of the Contract", "contractor's margin" and "erection of piers" less payment made by the Respondents and the balance from purchases. In light of the findings that the Tribunal made, there was no premature termination of the contract by the Respondents and indeed the finding by the Tribunal was that the Appellant had wrongfully terminated the contract. Given the Tribunal's findings that the contract was for a fixed price for work and materials, there would be no further payments for the contractor's margin or for erection of the piers. Accordingly there was no need to make particular reference to the cross-application. There was no other error identified in dismissing the cross-application. For the reasons referred to above, there was no error in dismissing the cross-application and adequate reasons were given in the circumstances.
The Respondents contend that once the Tribunal Member determined that the contract was for construction (both materials and labour) then the cross-application necessarily falls away. The Appeal Panel accepts that submission.
Failure to give reasons is a question of law, for which leave is not required. However, to the extent to which leave is required to determine the dismissal of the cross-application ground, leave is refused in respect of this ground of appeal. The ground of appeal is otherwise dismissed.
[13]
Costs
The Respondents in their submissions dated 28 October 2014 have submitted that the Appellant should pay their costs of the appeal. The Appellant did not respond to that submission in its supplementary submission filed 14 November 2014. However, the Respondents have not identified any basis upon which the Appeal Panel might find that there are special circumstances warranting an order for costs pursuant to s.60 of the Act. See also Megerditchian v. Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [8].
In circumstances where special circumstances have not been identified, the Appeal Panel makes no order as to costs. However, as the Appeal Panel did not hear full argument on costs it proposes to grant liberty to the parties, if they wish to do so, to apply within 14 days of the date of these orders to make an application for costs.
[14]
Orders
The Appeal Panel is not satisfied that the Appellant may have suffered a miscarriage of justice because of any of the grounds set out in cl 12(1)(a)(b) or (c) of Schedule 4 of the Act and has not otherwise established a basis for the appeal to be allowed. The application for leave to appeal and the appeal must therefore be dismissed.
Accordingly, the Appeal Panel makes the following orders:
1. To the extent necessary, leave to appeal is refused.
2. The appeal is otherwise dismissed.
3. The Tribunal's decision is confirmed.
4. The parties have liberty to make an application for costs within 14 dates of the date of these orders.
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: 08 September 2015