Ottaviano v Indorato

Background and the substantive decision at first instance

1. In about May 2014, the builder visited the home of the homeowner for the purposes of quoting on proposed building works.
2. The builder provided the homeowner with a quotation. The quotation was for various works, including the construction of an aluminium fence, the construction of a new rear timber deck and the construction of a new concrete driveway.
3. There was a dispute between the parties as to whether they had entered into a contract. The Tribunal found that they did enter into a contract in about June 2014, when the parties signed the quotation with the original price of $30,030 crossed out and the agreed price of $26,000 written in handwriting on the quotation. The Tribunal found that the contract was partly written and partly oral. The written part of the contract consisted of the amended quotation.
4. At the same time, the homeowner provided the builder with a cheque for $4,000, which the Tribunal found was a deposit.
5. The builder, or persons working on his behalf, undertook works at the property from mid-October 2014 to early January 2015.
6. There was a dispute between the parties as to the scope of works. The homeowner claimed that the scope of works, contained in the quotation, was later varied.
7. The Tribunal found that the parties agreed, in variation of the original contract, that the builder would extend the front verandah; that the front patio was included as part of the contract and inadvertently left off the written quote; that the concrete work would extend beyond the driveway to the footpath; that the fencing work would not proceed but that the $4,000 for fencing would be applied towards the concreting; and that the builder would do some work with respect to the gutters and stormwater pipes.
8. The Tribunal rejected the homeowner's submission that the builder agreed to "extend" the back verandah (or rear patio as it came to be called) with concrete and tiles instead of timber: at [38]. The Tribunal stated that the quotation showed that if the applicant wanted an "upgrade" of the decking materials, the spotted gum decking wood option, would be an additional $1200 cost.
9. The builder introduced the homeowner to a concreter, Franco (also known as Frank) Aloe, initially to discuss installation of a stencilled driveway. Mr Aloe and his son both provided affidavits stating that they were doing the work "under the direction" of the builder. Mr Aloe's son gave oral evidence that Mr Aloe carried out work at the homeowner's property as a sub-contractor. The builder claimed that Mr Aloe was not a sub-contractor, but rather an independent contractor. The Tribunal rejected this submission. This led to the Tribunal's finding that the builder was liable for the defects in the concreting work.
10. The builder abandoned the contract after 8 January 2015. The work remained incomplete. The homeowner formally terminated the contract on 3 February 2017
11. At first instance, as we have mentioned, core issues concerning liability, namely whether a contract had been made and as to the scope of the contract were determined against the builder (save for the one issue about the rear patio) and are not the subject of appeal.
12. Nor has any appeal been brought by the builder in respect of the Tribunal's conclusion that the builder should be ordered to pay compensation rather than remedy the defective and incomplete works.
13. Otherwise, in large measure, the homeowner achieved the success that she did at first instance because where there was disagreement between the experts about defectiveness or the standards to be applied, the Tribunal Member preferred the evidence of the building expert called by the homeowner, Mr Verinder, to the evidence from the builder's experts, Mr Nisbett and Mr Koloff.
14. A summary of the Tribunal's findings concerning each item is as follows: 1. Item 1: Gutter crossing or layback. Defective. $1,654 allowed for remedial work. 2. Item 2: Footpath crossing. Defective. $1,484 allowed for remedial work. 3. Item 3: Driveway slab. Defective. $9,790 allowed for remedial work. 4. Item 4: Driveway slab surface. No defect found. 5. Items 5 to 7: Front patio. Defective. Tribunal allowed $4,000 for patio slab and $1,405 for tiles and steps. 6. Items 8 to 13: Rear patio. Defective. $16,053 allowed for works. 7. Item 14: Stormwater pipework. Works incomplete. $819 allowed. 8. Items 15 and 16: Front and side fencing. Taken out of scope of works. 9. Item 17: Treated pine timber. Incomplete. $3,578 allowed to complete works. 10. Item 18: Garden mulch. Incomplete. $2,535 allowed to complete works. 11. Item 19: Clothesline. Incomplete. $75 allowed to complete works.
15. The Tribunal allowed a profit component of 15% and allowed $2,500 for home warranty insurance.
16. The Tribunal awarded the homeowner $33,060.05. This was calculated by adding $41,939 (total allowed for incomplete and defective works), $6,208.95 (15% profit) and $2,500 (for home warranty insurance), adding 10% for GST to the total (making $55,111.05), then deducting $22,043 (being the varied contract price).
17. Findings by the Tribunal as to defects in relation to the rear patio (items 8, 9, 10, 11 and 12) give rise to an unexplained inconsistency in the reasons.
18. The findings as to defects are set out in paragraphs 67 to 70 of the reasons and are based upon the views of Mr Verinder about the inadequacies of a concrete slab and concrete steps.
19. However, earlier in the reasons, the Tribunal had rejected the homeowner's contention that the builder had agreed to extend the "back veranda" with concrete and tiles instead of timber (paragraph 38). It appears that the Tribunal had in mind that the quote concerning this item indicates that if there was to be a change in the decking materials there would need to be a change in the price but this had not occurred. At the hearing of the appeal, the parties accepted that the reference to the back veranda was a reference to the same area of work as the rear patio. The award in relation to these five items totalled $16,053 and made up almost 50% of the total award of compensation.

Grounds of appeal from the substantive decision

1. The builder was unrepresented on the appeal. We have identified his grounds of appeal from a combination of those set out in his Notice of Appeal and in the extensive written material subsequently provided by him. In some instances, there were changes between the grounds set out or not set out in the Notice of Appeal and the matters raised in the submissions.
2. For present purposes, it is sufficient to say that for a variety of reasons, the builder seeks to challenge on the appeal findings of defective work in relation to 12 of the 19 items that were the subject of the Scott schedule, as well as the amount of the award that was made in relation to Home Warranty Insurance.

The limited appeal right

1. Under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a party may appeal as of right to the Appeal Panel in an internal appeal on any question of law. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal, the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis that: …..the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. The principles regarding whether or not leave to appeal should be granted under cl 12 sch 4 of the NCAT Act were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 at [76]-[84].
3. In this regard, the Appeal Panel in Collins said (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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.

Extension of time in which to appeal - law

1. Under r 25 (4) (c) of the Civil and Administrative Rules 2014 (NSW) (the NCAT Rules) the time period to file an internal appeal in the circumstances of this matter is 28 days from the date the appellant was "notified" of the decision or given reasons for the decision (whichever is the later).
2. The Notice of Appeal was filed on 10 September 2019. It should have been filed by 20 February 2019. This is an unusually lengthy delay.
3. The principles applicable to extensions of time are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. In that case the Appeal Panel said that the time limit should generally be strictly enforced but that was not to say that exceptions should not be made where the interests of justice so require (at [21]). The Appeal Panel added (at [22]): The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].

Extension of time in which to appeal - facts

1. The hearing of the appeal was listed for 31 October 2019. On that day, we identified that the homeowner had not been served with all the material on which the builder relied. In addition, we raised with the builder the absence of any sworn evidence supporting his application for an extension of time and asked if he wanted the opportunity to provide such evidence. He said he did. As a result, we adjourned the hearing, and made further orders for the service of certain documents on the homeowner, and for the builder and the homeowner to provide affidavit evidence relevant to the extension of time issue.
2. Subsequently, statutory declarations concerning the extension of time issue were filed and served from the builder, Mrs Ottaviano, and their son, Adriano. The homeowner filed and served an affidavit in response, sworn on 21 November 2019.
3. At the hearing on 9 December 2019, the builder and Adriano were cross-examined by the homeowner.
4. We now set out our findings as to the relevant facts concerning the application for an extension of time.
5. On 22 January 2019, the date of the Tribunal's decision, including the order that the builder pay the amount found to be due immediately, the Tribunal ordered the parties to provide any application for costs and submissions in support by 15 February 2019 and any response by 1 March 2019.
6. Soon after, the builder telephoned the Penrith Registrar, Ms Gainsford Holland and spoke to her about the Tribunal's decision on speaker phone. His wife heard and participated in the telephone conversation. Contrary to the builder's written submission filed on 11 October 2019 that when he spoke to Ms Gainsford-Holland she said he had "no recourse for an appeal" and contrary to assertions by him in correspondence to similar effect, he was not told by Ms Gainsford Holland that he could not appeal against the decision. In the sworn evidence that the builder, subsequently, came to give to the Appeal Panel he did not claim that this was what he had been told.
7. For present purposes, based upon the sworn evidence of the builder and his wife, and not upon various assertions as to what was said made by the builder in correspondence, it is sufficient that we find that in the conversation with Ms Gainsford Holland the following was said. The builder questioned why the order he had received said that he had to pay immediately, Mrs Ottaviano commented to the effect "where are we going to get the money", the builder expressed dissatisfaction with the Tribunal's decision, including by saying that the homeowner's expert had lied in his evidence, Ms Gainsford Holland advised him he could write to the President of the Tribunal about his claim of perjury and the issue of an appeal was not raised by anyone.
8. We do not accept the builder's evidence to the effect that it was not until much later in 2019 that he came to understand that he could seek to bring an appeal to the Appeal Panel against the decision and that if he had been given this information earlier he would have appealed earlier. We regard it as implausible that this was the case, having regard to his dissatisfaction with the decision, the fact that the homeowner appealed the decision, the legal representation that the builder continued to receive and the various statements or indications that we refer to below that he decided to accept the ruling.
9. Having said that, we accept the builder's evidence, which is consistent with the oral evidence given by his son, that he was very distressed at the outcome and wanted little, if anything further, to do with the ramifications of what had occurred and he arranged for his son to take charge of what should be done, including dealing with his solicitors. However, it is clear that the builder did not dismiss his solicitor when he learned of the Tribunal result, as he claimed in his Statutory Declaration. In his evidence in cross-examination, Adriano accepted that this had not occurred and said that shortly after the decision his father had said to him that he should call the lawyer (Ms Leculier) and sort it out. We accept that evidence.
10. We also accept that dating back to February 2018 the builder was from time to time in 2018 and 2019 being treated by a psychologist (Mr Mangioni) for an anxiety disorder brought on by the litigation with the homeowner. However, in the absence of evidence from the psychologist, we are not prepared to find that the builder was for some relevant period incapable of making a decision whether to appeal and providing relevant instructions.
11. On 31 January 2019, the builder commenced proceedings in the Tribunal against Frank Aloe (HB 19/05527). The application stated that Mr Aloe "has to pay for defective concrete work he carried out for me" at the homeowner's address. He sought an order that Mr Aloe pay him $70,000 for defective work.
12. The builder later withdrew these proceedings.
13. On 11 February 2019, the homeowner lodged an appeal against the orders in the builder's favour.
14. On 19 February 2019, the builder's solicitor, Ms Leculier of Sydney Solicitors, signed, filed and served his reply to appeal. In that reply, it was stated that the builder had suffered huge financial loss as a result of the proceedings but "is just accepting his loss and wishes to move forward with his life." The reply also stated that the builder is unwell and that the proceedings had taken a heavy toll on his health.
15. On 7 April 2019, the builder's solicitor, Ms Leculier, wrote to the homeowner, asking how she wished the amount of the Tribunal's orders ($33,060.05) to be paid to her. On 15 April 2019, Ms Leculier sent the homeowner proof of remittance of payment of $33,060.05 to her nominated account.
16. The homeowner's appeal was heard by a differently-constituted Appeal Panel on 28 March and 16 April 2019. The homeowner was self-represented and the builder was represented by Sydney Solicitors and by counsel.
17. On 6 May 2019, the Appeal Panel dismissed the homeowner's appeal (Indorato v Ottaviano t/as Transbuild Construction [2019] NSWCATAP 115). It made orders permitting the builder to apply for costs and the homeowner to respond.

The costs decision

1. The homeowner applied for costs of the Tribunal's decision. The application was determined on the papers. On 9 May 2019, the Tribunal ordered the builder to pay the homeowner's costs. The Tribunal found that the homeowner had been largely successful in the proceedings, having achieved substantial success on the contractual liability issues and having succeeded with respect to 16 out of 19 items concerning defective or incomplete work
2. We note that in the reasons for that decision the Tribunal commented that many of the reasons provided by the builder as to why costs should not be awarded included complaints about alleged errors in reasoning which are "dealt with by way of Appeal" and are not relevant to the costs determination: at [14]. Nevertheless, this did not provoke the builder to bring an appeal at this time.
3. On 20 May 2019, Ms Leculier sent the homeowner the builder's submissions on costs for the appeal matter.
4. On 21 May 2019, Ms Leculier emailed the homeowner concerning the costs of the Tribunal decision. Ms Leculier stated in the email that her client wished the matter to be resolved in the earliest possible manner and referred to an offer to pay her costs provided those costs are reasonable.
5. On 3 June 2019, a paralegal at Ms Leculier's firm emailed the homeowner's solicitor, Ms Hutchings, and requested advice as to the amount of costs the homeowner was seeking. The email stated that the builder would like to finalise the matter as early as possible.
6. On 11 June 2019, the homeowner's solicitor, Ms Hutchings, emailed Ms Leculier. She attached a "without prejudice" offer. She stated that the homeowner's costs were $104,417.48 (ex GST) and that her client was prepared to accept a sum of $94,000 (inc GST).
7. On 26 June 2019, the Appeal Panel dismissed the builder's application for the costs of the homeowner's appeal (Indorato v Ottaviano t/as Transbuild Construction [2019] NSWCATAP 156).
8. On Friday, 5 July 2019, the Tribunal received a letter from the builder addressed to the President and a Deputy President of the Tribunal. He stated in the letter that he believed there had been a "gross miscarriage of justice" in the proceedings. He stated that, when the Tribunal found that he was liable for $33,000, he "reluctantly accepted" the Tribunal's decision and paid. However, he said the Notice of Order required him to pay immediately and: "made no mention that I had a right of appeal. I called the registrar to protest. My wife was present. I asked why do I have to pay immediately. She simply stated that that is the Notice and I have to pay."
9. The builder's main complaint in the letter was that the homeowner's expert witness did not do his job properly. He attached a letter to the President dated 11 March 2019, which he called "Letter A," which he had not sent until the July letter to the Tribunal. Letter A set out the reasons why he said the Tribunal had been misled by the homeowner's expert witness.
10. The builder's letter (not Letter A) concluded: "I have made it clear, that I accept [the Tribunal's] ruling, but not the expert witness, not the legal costing that I have to pay. All I want is to be treated fairly. I want to know justice is fair for all."
11. At odds with what the builder said in his sworn evidence, the 5 July 2019 letter suggests that what prompted it being sent was: On Wednesday the 3rd of July, my two sons and wife sat me down, to tell me the final outcome of this matter. They told me that I had to pay all of the applicants costs $105,000 and that even though we won her appeal she does not have to pay me my costs.
12. In his Statutory Declaration declared on 11 November 2019 the builder said that after a deal had been done with the homeowner about the amount of her costs to pay he "lodged Paper A" (a reference to Letter A), which he said he regarded as the procedure for making an appeal. However, as appears below, that deal as to costs was not reached until after this document was provided to the Tribunal.
13. The 5 July 2019 letter from the builder was also sent by email to Registrar Clegg on 7 July 2019. That email included a question as to why he was not allowed to appeal the order made on 22 January 2019 making reference to the Notice of Order stating that he had to pay immediately, which had made no reference to having 28 days in which to appeal.
14. On 9 July 2019, Ms Hutchings emailed her client, the homeowner, informing her that she had received a telephone call from the builder's son, who indicated that the builder was no longer represented by the firm of solicitors. The son had asked whether the homeowner would accept another amount (without specifying the amount).
15. On the same day, the builder's son emailed Ms Hutchings, offering $60,000 in payment of the homeowner's costs.
16. On 15 July 2019, the builder emailed Registrar Clegg, requesting to appeal the orders made by the Tribunal in these proceedings. He began by saying "I was not allowed to appeal. The Penrith register told me by phone, I was to pay the sum of $33,000.00 immediately. No appeal…" He set out the claimed errors in the Tribunal's decision. He stated that he reluctantly accepted the Tribunal's decision in respect of the rear patio.
17. On 16 July 2019, Registrar Clegg emailed the builder a Notice of Appeal form. However, the Notice of Appeal was not lodged until 10 September 2019. No explanation was put forward by the builder for this further delay.
18. On 24 July 2019, Ms Hutchings and a partner in the same firm, Brad Kermond, wrote to the builder, rejecting the counter offer made on 9 July 2019. The letter indicated that the homeowner would make a final offer to accept $84,000 (inc GST).
19. On 25 July 2019, the builder emailed Ms Clegg, informing her that he was preparing his appeal.
20. On 7 August 2019, the builder's son emailed Mr Kermond, stating that the builder was willing to accept the offer, on terms that $24,000 would be paid immediately, and $10,000 each month thereafter.
21. On 9 August 2019, the Acting Principal Registrar, Pauline Green, wrote to the builder in response to his correspondence to the President. In the letter, Ms Green reported that Ms Gainsford Holland did not recall telling the builder that he could not lodge an appeal. Ms Green also advised the builder that if he believed the Tribunal made an error, he could appeal. Nevertheless, another month passed before the appeal was lodged.
22. On 16 August 2019, Mr Kermond and Ms Hutchings wrote to the builder, proposing a different payment schedule and enclosing an agreement for the builder to sign.
23. On 27 August 2019, Ms Hutchings emailed the builder an amended agreement (apparently at the builder's request).
24. On 29 August 2019, the builder's son asked Ms Hutchings to reissue the amended agreement with the dates changed to 30 August 2019. A solicitor in Ms Hutchings' firm did that on the same day.
25. The builder did not sign the costs agreement the following day. However, on 31 August 2019, the builder paid the homeowner $42,000 (representing the first of three instalments under the agreement).
26. On 10 September 2019, the builder lodged a notice of appeal, commencing these appeal proceedings. In response to a question on the appeal form asking him to explain why the appeal was lodged out of time, he wrote: "Since this matter arose in 2015, I have lapsed into depression & anxiety. I have been treated by Dr Peter Mangioh,(sic) psychologist. I have garnered the strength now to lodge this. I had lodged this soon afterward the notice of order was issued, but there was a misunderstanding with the Penrith Register and I wrote to the Head of Department. There is no effect on the respondent. I am now treated and have the mental strength to lodge this."
27. As we have indicated above, we do not accept this explanation for the delay. Precisely, what the real reason(s) for the delay were we are unable to determine, save to find that early on after the decision was received there was a deliberate decision by the builder not to pursue an appeal, which was communicated on his behalf to the homeowner, and, that, subsequently, he changed his mind.
28. The consequences of this approach by the builder have included inefficient use of the resources of the Tribunal in dealing with two separate appeals from the one decision and unfairness to the homeowner in seeking to upset the settled state of affairs concerning a worrying dispute, including considerable financial ramifications, that had existed for a considerable period of time.

Extension of time - conclusion

1. In these circumstances, we are extremely reluctant to grant the necessary extension of time. We take the view that it would only be in the face of a very clearly demonstrated substantial injustice to the builder in relation to the merits of the decision of the Tribunal that we would allow an extension.
2. As Hodgson JA said in Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (Ipp JA agreeing at [17]), it will be sufficient for an applicant for an extension of time to show that he or she has a fairly arguable case if the applicant has a reasonable explanation of delay and the opponent does not have a strong case of prejudice. However, "if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable."
3. In this case, for reasons given above, we consider the builder's explanation for the delay to be less than satisfactory. There would be prejudice to the homeowner through, at least, the stress and inconvenience and potential cost of further litigation (a new hearing to redetermine the facts and, possibly, a further hearing about costs) that we think would or may be necessary should any of the appeal points be upheld...
4. None of the matters raised on the appeal, with the exception of the Tribunal's decision about the rear patio, come near to demonstrating error of this nature, let alone anything more than arguable error of fact, and in one case (the Home Warranty issue) the alleged error was based on fresh evidence that was not shown to be not reasonably available at the time of the hearing at first instance.
5. We, briefly, expand upon our conclusion about these items, other than those concerning the rear patio, below: 1. In relation to items 1 and 2 (gutter and footpath crossings), the outcome turned upon the Tribunal's preference for the views of Mr Verinder over the builder's experts and the views of the Hurstville Council. The Tribunal awarded the amount that the experts were agreed upon should it be found that the works were defective. On appeal, the builder sought to rely upon different views of the Parramatta Council expressed after the Tribunal's decision. 2. In relation to issues concerning the driveway slab (items 3 and 4), the Tribunal preferred the evidence of Mr Verinder bearing in mind that he had taken a core sample and the Tribunal considered that the reasoning of the builder's experts was inadequate (insofar as they reasoned that if there were no cracks, movement or discolouration after two years then the driveway was properly constructed). The Tribunal accepted Mr Verinder's evidence as to the required thickness of the slab rather than the lesser thickness given by Mr Nisbett. On appeal the builder took issue with the correctness of Mr Verinder's opinion, asserted that the work was perfect and no cracking had appeared. However, none of this showed that the Tribunal had come to a conclusion that was not open to it. The builder also said on appeal that Mr Verinder had changed his opinion in the conclave report and the Tribunal did not take this altered opinion into account. Whilst Mr Verinder responded to the views of the builder's expert, he maintained his view that the works were defective. 3. In relation to issues concerning the front patio (items 5, 6 and 7), the builder did not appeal from the decision in relation to items 5 and 6 but appealed in relation to item 7. On appeal, the builder contended that there was no agreement for tiling to be installed because there was nothing in writing about this and also challenged the Tribunal's findings concerning steps. However, the Tribunal made findings that there were oral variations to the contract based upon the homeowner's evidence. The builder has not shown why this conclusion was not open to the Tribunal. 4. In relation to item 17 concerning the laying of treated pine timber along the length of the proposed new fence, on appeal, the builder, initially (in the Notice of Appeal) said that he accepted the decision but not the quantum awarded. Subsequently, he challenged any adverse finding about this item on the basis that it made no sense that he was liable to complete this item when it was also found that the new fence was excluded from the contract. However, it did not necessarily follow that this was the case because the quote (item 8) concerned laying this pine away from the fence, not on it, and, hence, could be done along the line of where the fence was supposed to have gone. As to quantum, the Scott Schedule indicates that the experts were agreed as to cost. 5. In relation to item 18 concerning mulch, on appeal, the builder challenged the quantum of the award but the Scott Schedule shows that the experts were agreed as to cost. 6. In relation to the Home Warranty issue, on appeal, the builder contended that it was clear that the cost was inflated given the reduced amount awarded to the homeowner. Even if this was so, the correct calculation was not put before the Tribunal and could have been.
6. The builder's appeal ground on items 8 to 13 (concerning the rear patio) was as follows: "Conclusion by Tribunal was that I was not responsible for concrete and tiling. Yet I was not charged for tiling but charged for concreting. Please see also statutory declaration by Frank Aloe, concreter. I have nothing to do with this work."
7. The builder also stated in his Notice of Appeal, under the heading "Decision not fair and equitable": "The applicant created a matter that I was responsible for all concrete work at her house. This is not true as statutory declaration by a concreter states he did bulk of work under the applicant's directions. I have been blamed."
8. In Folder C of his written submissions the builder set out the material he relied upon to support his case that whilst he accepted he was responsible for concrete work in respect of items 1, 2, 3, and 6 he had no involvement with the rear patio concrete work and he was not responsible for that element the work.
9. The builder's submissions challenge the homeowner's statement that he agreed in mid-October 2014 to a tiled back deck. He points to the absence of any documentary evidence to support this. The builder's case is ultimately that, the Tribunal was wrong to find, as it seems it implicitly did, that he had agreed to construct the back deck in concrete and tiles (or just in concrete) and that the homeowner in fact had a separate contract with Frank Aloe to do this work.
10. The evidence which was before the Tribunal on this issue was as follows.
11. The homeowner relied upon an affidavit made by Mr Aloe on 1 June 2016. In that affidavit, Mr Aloe stated that he did concrete works under the direction of the builder at the homeowner's home.
12. Mr Aloe's son also affirmed an affidavit on 4 June 2016, which was relied upon by the homeowner, in which he stated that his father had told him that he was doing some concrete works for the builder at the homeowner's address. Mr Aloe's son said in oral evidence that he was put under pressure to sign the affidavit by the homeowner. However, he also gave oral evidence that his father had told him that he was working for the builder.
13. The homeowner made an affidavit on 24 November 2016 in which she stated that she never discussed the extension of the rear deck with Mr Aloe and that she discussed changing the rear deck from timber to concrete with tiles with the builder in mid-October 2014. Her evidence was that the builder calculated the price for this variation on 30 December 2014. She annexed to her affidavits text messages received from the builder in early January 2015, the first telling her that "we are pouring concrete" and needed two payments of $5,000 that week, and the second asking her to make sure she has $4,500 the following day, as "I have to pay Frank." Her evidence was that she paid the builder in cash as requested.
14. The builder relies, in relation to this ground, upon two statutory declarations of Franco Aloe which were before the Tribunal, both dated 18 November 2016.
15. In one of the statutory declarations, Mr Aloe states that the homeowner told him that she wished to build a concrete deck at the rear of her home. After Mr Aloe had prepared the formwork, Mr Aloe states that the homeowner told him she wanted to make it even bigger.
16. The statutory declaration indicates that the homeowner was directly giving Mr Aloe directions about the construction of the rear deck. Mr Aloe states that, when he requested payment from the homeowner, she said she could not give it to him, and that she had to give it to the builder.
17. In the other statutory declaration, Mr Aloe states that the homeowner asked him to sign an affidavit she had already typed up (that is, the affidavit of 1 June 2016) and that he did so.
18. Mr Aloe's statutory declarations did not go so far as to retract the affidavit of 1 June 2016.
19. The builder made a statutory declaration, dated 27 June 2016, in which he stated that he had never agreed to build a concrete deck extension. His evidence was that the homeowner paid Mr Aloe for concrete works in cash, in his presence. That evidence sits uneasily with Mr Aloe's evidence that the homeowner refused to pay him and said she would have to pay the builder. It is also inconsistent with the builder's oral evidence, which was that the homeowner paid him cash for the concreting work and he gave it to Mr Aloe.
20. The Tribunal discussed the builder's claim that he simply introduced Mr Aloe to the homeowner, and that Mr Aloe was not a sub-contractor, in its discussion of the driveway issue (at [40]). It referred to the affidavits of Mr Aloe and his son stating that they were doing concrete work "under the direction of" the builder. The Tribunal continued (at [40]): Mr Franco Aloe was summonsed to give evidence by the respondent. On the first day he provided a doctor's certificate to say he was unable to attend (exhibit 1). However, his son, Mr Passquale Aloe did attend under summons and was cross examined and gave evidence that his father carried out work at the property as contractor to the respondent. The Tribunal is satisfied that Mr Franco Aloe, a concreter, attended the property, to discuss the work on the driveway … and that when the applicant asked him about the cost of a stencilled or stamped driveway, Mr Franco Aloe responded by requiring the applicant to discuss cost with the respondent.
21. The Tribunal did not deal with the question of whether Mr Aloe entered into a contract with the homeowner directly in relation to the rear deck. Nor did it refer to the statutory declarations provided by Mr Aloe. However, the Tribunal gave reasons why it considered him to be a subcontractor for the concreting work in general terms. The affidavits made by the concreter and his son did not distinguish between different parts of the concreting but simply stated that the concreting was done under the builder's direction.
22. In the course of its reasons for rejecting the builder's submission that he had not contracted with the homeowner, the Tribunal expressed the opinion that his evidence was not credible (at [22]). In support of its conclusion that he was responsible for the concreting, the Tribunal also referred to a text message from the builder to the homeowner on 5 November 2014 in which he stated that the concrete was booked for "Wednesday week." The Tribunal rejected the builder's claim that he said this simply because he could get discounted prices and for that reason the concrete was bought on his account (at [31]).
23. There is an unexplained inconsistency between the Tribunal's finding that the contract was not varied to provide that the rear patio would be constructed with concrete and tiles instead of timber, and its later finding that the builder was responsible for the defects in the rear patio concrete slab. One possible explanation is that in the earlier finding the Tribunal was focussing upon a different type of variation to the rear patio than just the laying of a concrete. However, it is implicit, in the later findings that the Tribunal considered that there had been a variation to the contract to require the construction of a concrete slab for the rear patio, but that the variation did not involve tiling the slab. It awarded the amount of $16,053 in respect of the rear patio, which is the amount Mr Verinder allowed for demolishing and replacing the concrete slab, but did not award the amounts of $3,028 and $757 allowed by Mr Verinder for tiling the rear patio. We note that both experts provided costings for replacing or rectifying the slab, neither provided a costing for demolishing the slab and replacing it with timber.
24. The builder's appeal ground placed significant reliance upon the proposition that Mr Aloe's statutory declarations "clearly showed" he had nothing to do with items 8 to 12. We do not agree that they clearly show this. Mr Aloe's affidavit evidence that he did work under the builder's direction was not retracted and his son gave oral evidence that Mr Aloe had told him that he was doing work for the builder.
25. Furthermore, to uphold the builder's case with respect to the rear patio cuts across the general finding that Mr Aloe was a subcontractor for the builder and not an independent contractor.
26. In view of these matters, our assessment is that the builder's case concerning responsibility for the concrete work for the rear patio does not have more substantial merit than being fairly arguable.
27. In view of this assessment of the merits of the builder's case, it is unnecessary for us to consider whether in the particular circumstances of this case, which were adverse to the grant of an extension of time, the applicant needed to go further and show that he had a strong case on the merits in order to overcome those adverse factors, although we are inclined to think that this may well have been required in order for us to exercise our discretion in his favour.
28. In these circumstances, and having regard to the builder's statement to the Tribunal's registrar in July 2019 that he reluctantly accepted the Tribunal's decision about the rear patio, we are not satisfied that strict compliance with the time limits for lodging an appeal will work an injustice upon the builder (see Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22(1)]). .
29. For these reasons, we refuse an extension of time to appeal on this ground.

Leave to appeal and the appeal itself

1. Even if we had been prepared to grant the necessary extension of time, we would have refused leave to appeal, because we would not have been satisfied that there was any other error of the kind that warrants leave to appeal, as described in paragraph 31 above.

Appeal from the costs decision issued on 9 May 2019

1. 109 We have treated the appeal as also including an appeal by the builder against the costs decision issued on 9 May 2019, referred to above.
2. In this regard, whilst the builder's Notice of Appeal identifies the decision he is appealing from as the decision of 22 January 2019,under the heading "Orders the NCAT Appeal Panel should make," the builder states that the order as to the amount he is required to pay the homeowner should be corrected then adds: "Being below the threshold s 38, there are no special circumstances. Orders of costs must be revoked/reviewed." Furthermore, submissions made by the builder concerning the making of a Calderbank offer, referred to below, were only of any potential relevance to the costs decision. We note also that the homeowner indicated, in her reply to the appeal filed on 20 September 2019, that she understood the builder to be seeking leave to appeal the costs decision.
3. The builder's appeal against the costs orders of 19 May 2019 is also out of time. The delay is considerable, although not as lengthy as with respect to the appeal from the substantive decision. For like reasons as applied to the latter delay, no satisfactory explanation was provided for this delay. Our approach to the grant of an extension of time in respect of this appeal is the same as applied with the appeal from the substantive decision.
4. We assume that what the builder had in mind in his Notice of Appeal about "[b]eing below the threshold" was that if, as a result of the appeal, the order that he pay $33,068.05 to the respondent was reversed or reduced below $30,000, then it should follow that the costs decision should also be reversed. In this regard, the builder seems to have also believed, incorrectly, that a costs order could only be made in favour of the homeowner if special circumstances existed if the amount awarded fell below $30,000.00. However, it is the amount of the claim or in dispute, in this case a claim well in excess of $30,000.00, not the amount of the award, that determines whether an award of costs can be made in the absence of special circumstances: Rule 38(2)(b) of the NCAT Rules.
5. As to the Calderbank offer, the builder sought to make something of this settlement offer to which he had referred the Tribunal. In his Notice of Appeal, the builder claimed that the Tribunal should have given more weight to this offer which was "on par with" what the homeowner "won." The builder's offer was an offer to do certain rectification works, not an offer to pay the homeowner any money. The Tribunal stated in its reasons for the costs decision: "There is no evidence of any offers that were made for more than what was ultimately awarded against the respondent or any offers that would constitute a Calderbank offer" (at [16]). We find no error in this conclusion.
6. For these reasons, we refuse to grant an extension of time to appeal against the costs decision. In any event, we would have refused leave to appeal against this decision for the same reasons.

Orders For the above reasons, we order as follows: 1. Application for an extension of time to lodge the appeal is refused. 2. 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: 19 February 2020