Ottaviano v Leculier

What orders do you want?

Return of all[3] of my money paid to her.

Why are you applying to NCAT?

Matter that solicitor was engaged & failed to carry her dutys [sic] was held at NCAT.

1. Attached to the application was an email from the appellant to the respondent which stated:

You were engaged to represent me in NCAT case Indorato/Ottaviano.

Your duty of care is to your client, and in my case, your representation in my matter was appalling!

I ask you to respond to one question.

In these matters, I am a Layperson. pay a solicitor to Guide me and deprotect my position at every situation! In my regards, You failed to carry out your professional duties in protecting my position!

The chairperson determined that I was to pay $33.000.00. Automatically, this amount had triggered' NCAT Rule 38 ('An amount of over $30.000.00 that a defendant has to pay is now subjected to pay all legal costs to the other party

You, as a 'professional' Solicitor, would of known this! So I ask, why did you not tell me to APPEAL! as you stated, there was 'addition' mistakes that would of EASILY BROUGHT IT BELOW THE $30.000.00 THRESHOLD! Not to talk about many other mistakes that could of easily been defended!

Even in the pre-trial Appeal, the VICE PRESIDENT OF NCAT, STUART WESTARTH TOLD YOU IN YOUR FACE

'APPEAL! You ignored him!

Bambagiotti tells me he was Only directed by you, to defend the Appeal lodged by Indorato!

At lodgement of 'Costs' papers, your defence for my case was quote, the applicant was only successful in winning a third of her claim, therefore she was not very successful. NCAT responded to your 'defence' by saying quote, 'but she did win $33.000.00!'

The applicants lawyers, Colins Biggers and Paisely in their response simply said, Rule 38 is activated therefore Respondent must pay ALL LEGAL COSTS!

$105.000.00!!!!! I had to pay!

So l ask you, if we APPEALED the decision, we could of easily brought the payment well below $30.000.00 then our defence for costs to NCAT would of simply been, the applicant 'now pays for their legal and we pay for ours!!'

You spent NO time dissecting this case. You took NO Interest in the information that I gave you debunking most of applicants claim. But disgustingly, from your part, you NEVER let me talk, and YOU NEVER SAID ANYTHING TO DEFEND MY POSITION DURING HEARING! A DISGRACE! YOU LET A VERY DISHONEST PERSON LITERALLY GET AWAY WITH MURDER

Instead, you had the AUDACITY to tell my family to send me to a Phycologist!

But, you had plenty of time to tell me about your recent purchase at building which you work from! this is part of your building portfolio you stated! You had plenty of time to tell me to help your friend who purchased a property in Mamre Road St Mary's whom now were going to build some townhouses! Please help them you said to me!

I replay this matter in my mind every day! through your ineptitude, it makes me sick!

At the end of hearings, walking out the room at NCAT, i HAD A massive QUESTION MARK in my mind!

I knew, through your handling of the matter, we had gifted the result to the applicant!

Across the road, in Westfields, my wife and I purchased you lunch. We were discussing the matter when you, with your mouth full, said 'why, you think what Indorato did is not criminal!

My wife and I were stunned! Yet, in the hearing room, with ALL THE INFORMATION YOU HAD AT YOUR DISPOSAL, YOU SAID NOTHING! I am simply disgusted!

I don't think you have any experience in these matters! Your 'website' states you were in Cosmetics.

You should of never taken my matter!

(Capitalisation and other emphasis as in original; typographical and other errors as in original)

1. After a hearing on 16 April 2025, the appellant's application was dismissed and the Primary Decision published.
2. The Primary Decision is the decision the subject of this appeal.

1. The appellant filed a Notice of Appeal on 6 August 2025, which is within the time provided by r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW).
2. In the Notice of Appeal, under the heading "Orders Challenged On Appeal", the appellant states:

My application was not heard in full!

Decision could not be made!

1. Under the heading "Grounds of Appeal", the appellant states:

Chairperson deliberately! left out critical paperwork in his decision;

Incorrect procedural direction from NCAT/using unsigned documents

One paperwork that says I had no contract.

(Emphasis as in original)

1. In the Notice of Appeal, the appellant also states that the Primary Decision was not fair and equitable because:

NCAT used unsigned AFFIDAVIT!

Solicitor did not present one paperwork that says I HAD NO CONTRACT.

(Emphasis and capitalisation as in original)

(1) pages 1, 3, 4, 5 and 6 of the First Legal Representation Decision;

(2) the Second Legal Representation Decision;

(3) a letter of the appellant's then solicitors to the appellant dated 14 November 2016, attaching a draft affidavit of the appellant titled as being dated on 15 November 2016 (appellant's Unsigned Affidavit).

(4) two copies of the Primary Decision.

1. Given the importance of the appellant's Unsigned Affidavit for the appellant in this appeal, I will set out the text of the appellant's unsigned affidavit in full:

I am the Respondent named herein.

I applied for Legal Representation in these Proceedings and wish to formally apply for an extension of the existing Timetable.

On 2 September 2016 my Solicitor applied for Legal Representation [TAB 1]

On 16 September 2016 NCAT heard the Application for Legal Representation which was refused. At my Solicitors request the Tribunal published its Orders on 17 October 2016 [TAB 2].

On 22 September 2016 my Solicitor's again requested Legal Representation [TAB 3]

The reasons for the grant of leave for Legal Representation are the reasons submitted to the Tribunal on the first occasion which included:-

This Claim is in excess of $100,000.00.

The Evidence to date includes four (4) lay witnesses and four (4) expert witnesses.

The issues are complex including:-

a) Contractual issues

b) Assessment of Defective Work

iv. The Applicant is possessed of sufficient financial means to retain Legal Representation if she so desires.

Since our last Application it's come to our notice that:-

a) The Applicant has obtained Evidence from a Witness under duress and under threat of fines from The Office of Fair Trading

b) The Applicant is experienced in Litigation. We have been informed that she has already bought Proceedings against two other Parties in NCAT.

c) I am not experienced in the conduct of Litigation. I have suffered much stress from the Applicant's complaint to NCAT. The Application is vexatious and frivolous. I am not sleeping well and find it difficult to run my own business.

d) In previous Proceedings HB 16/29619 as far as I can recall the Tribunal granted leave for me to be represented by HWL Ebsworth Lawyers where in the Tribunal sets aside a previous decision in Proceedings HB 15/66730. A copy of this decision is attached [TAB 4].

1. The Notice of Appeal and attachments numbered approximately 150 pages of materials.

1. Subsequent to filing his Notice of Appeal, the appellant filed further bundles of materials. Each bundle included both evidence and submissions.
2. The first bundle was filed on 16 October 2025. This bundle included material previously filed.
3. This bundle comprised the following documents:

(1) six pages of handwritten submission of the appellant. These submissions address the following matters:

(a) that he had no contract with the homeowner, for whom he had undertaken residential building work;

(b) that the respondent (and the Tribunal) "failed, with all of the evidence [to determine that] I had no contract!";

(c) submissions suggesting that Tribunal in reaching its decision in the Builder's Liability Decision erred in various ways;

(d) a submission that an undated letter from the homeowner to the appellant showed that there was no contract between the appellant and the homeowner for certain of the building works for which the appellant was found liable;

(2) a quotation of the appellant for the homeowner dated 21 June 2014;

(3) the orders of the Tribunal of 22 January 2019 in the Builder's Liability Decision together with the Builder's Liability Decision;

(4) part of the transcript of the final hearing of matter 2024/00464286 where the appellant's solicitor Mr Adams cross-examined the homeowner;

(5) two copies of the statutory declaration of Mr Franco Aloe sworn 18 November 2016;

(6) a letter from the homeowner to the appellant, undated, in which the homeowner offers to pay the appellant $22,000 in respect of her driveway and footpath, tiling; fencing; an automatic gate and her garden. The appellant's point is that those works did not form part of any contract he had with the homeowner (bearing in mind he says that he had no contract with the homeowner);

(7) the First Legal Representation Decision;

(8) the Second Legal Representation Decision;

(9) another copy of the appellant's Unsigned Affidavit.

1. The second bundle was a 77 page bundle of materials filed on 26 November 2025. At the appeal hearing, the appellant told me that he did not wish to rely on this bundle of materials.
2. The third bundle was filed on 23 January 2026, and comprised 4 pages of handwritten submissions together with a copy of the NCAT's Member Code of Conduct dated 9 July 2020.
3. The handwritten submissions were addressed to "Moray Agnew",[4] "Ms Leigh Armstrong - President of NCAT"[5] and "Mr Stuart Westgarth - Vice President of NCAT".[6] In this document, the appellant:
   • criticises Moray & Agnew for advising the respondent in circumstances where the appellant had been denied leave to be legally represented at the appeal hearing;
   • states that:

You have sent me three, voluminous folders for this matter, As a layperson, it seems to me you are trying to 'muddy the waters'. As if I want to re-litigate this matter, which I know I can't, as much I desperately would like to, but your client Truie Lecuire took this right away from me, when she said, after Tribunal Member Simons made determination that I had to pay $33,000, Lecurie told us to pay. Nothing to see here.

• suggests that the fact that the appellant had to pay legal costs made a "mockery" of s 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

1. The appellant then states that, "for clarity of purpose", he will reiterate "what my matter is about". In his submissions, the appellant:
   • states that after "three and a half days in the Tribunal, 12 months later", Senior Member Simon determined that "I had a contract with [the homeowner and] that I had agreed on variations for additional works, which were falsely found to be 'defective'";
   • states that the respondent admitted that Senior Member Simon was her lecturer;
   • states, after setting out the duties of a lawyer to their client, that the respondent "did nothing in helping my representation! Nothing.";
   • doubts that the respondent has "much experience" in building matters, as her website states that "her forte" is "Pharmaceuticals!"; "But she took my money! Up front!";
   • states that the respondent failed in her representation of the appellant;
   • states that Senior Member Simon breached the NCAT Code of Conduct.[7]
2. The appellant concludes by stating:

So, since you have included every piece of paperwork in your three voluminous volumes, you can all show me, Mario Ottaviano, layperson, builder, completed HSC in 1980, completed certificate at TAFE in 1984:

That there was a contract/show me!

That there was variations agreement/show me!

And it is acceptable for a Tribunal member to use an unsigned affidavit, and, reverse a decision made by Member Goldstein, that I did not appeal, two and a half months later!

It is stated in essence, belief in the rule of law means trusting that the legal system works for everyone!

Please answer my questions, demonstrate that I am wrong and I will simply walk away.

1. On 12 September 2025, the respondent filed an 806 bundle of documents being:

(1) previous submissions of the respondent in various proceedings;

(2) a transcript of the hearing in the Initial Application;

(3) various reasons for decision of the Tribunal and the Appeal Panel;

(4) correspondence between the parties;

(5) correspondence between the respondent and the Office of the Legal Services Commissioner.[8]

1. The respondent filed a Reply to Appeal on 24 September 2025.
2. In summary, the respondent states that:

(1) she supports the order in the Primary Decision that the appellant's application be dismissed for the reasons given by the Tribunal;

(2) in addition to the reasons provided in that decision, submits that:

(a) the appellant had notice prior to the hearing of his application that the extension of time application would be considered at the hearing as, as stated in the orders dated 17 January 2025:

The Tribunal also notes a threshold issue whether the claim is out of time will be first determined at final hearing

(b) the appellant's application was an abuse of process as it was a collateral attack on the Builder's Liability Decision and was premised on overturning factual findings made in that decision and confirmed in the appellant's Appeal Decision. It is manifest in the correspondence exchanged with the appellant that the appellant had difficulty in accepting the binding decisions of the Tribunal;

(c) while the appellant claimed that the appellant's Unsigned Affidavit was used to his detriment, the appellant did not articulate when the affidavit was used, how the affidavit was used, how its alleged use was detrimental and what loss it allegedly caused;

(d) further, the respondent was not involved in the drafting of the affidavit or the lodgement of the affidavit with the Tribunal, and the date of the affidavit pre-dates the respondent's retainer with the appellant. The lodgement of the appellant's Unsigned Affidavit with the Tribunal post-dates the respondent's retainer with the appellant.

1. In reply to the appellant's grounds of appeal set out in his Notice of Appeal, the respondent submits that:

(1) the appellant's grounds of appeal in the Notice of Appeal are so unclear and vague as to be embarrassing;

(2) as far as the respondent can tell, the grounds of appeal are that:

(a) the appellant's claim application was not heard in full (Ground 1);

(b) the Tribunal deliberately did not include critical evidence in the Primary Decision, including a document that states "[the appellant] had no contract" (Ground 2); and

(c) the Tribunal provided incorrect procedural directions regarding using unsigned documents (Ground 3).

1. The respondent replies to those grounds of appeal as follows:

(1) Ground 1 is denied. The appellant was not denied procedural fairness by the Tribunal and was granted adequate opportunity to be heard on the claim application during the hearing;

(2) Ground 2 is denied because:

(a) in accordance with s 62(3) of the NCAT Act, the Tribunal gave adequate reasons for its decision, including the consideration of the evidence before the Tribunal; and

(b) the appeal is a collateral attack on the Builder's Liability Decision which determined that, amongst other things, the appellant did have a contract with homeowner;

(3) Ground 3 is denied as the respondent does not know what procedural directions or unsigned documents the appellant was referring to.

1. In the balance of the Reply to Appeal, the respondent says that the appellant requires leave to appeal, and that leave to appeal should not be granted.

1. The respondent filed submissions on 28 November 2025.
2. Relevantly, in relation to Ground 1, the respondent submits that:

(1) the appellant bears the onus of establishing the grounds of appeal and the appellant has clearly not discharged this onus. The appellant has provided no evidence about, nor has he explained, how he was denied the opportunity to have his claim heard in full during the hearing;

(2) the appellant was not denied the opportunity to have his claim heard in full (or denied procedural fairness at all) by the Tribunal and was granted adequate opportunity to be heard on his claims during the Tribunal hearing.

1. Relevantly, in relation to Ground 2, the respondent submits that:

(1) Ground 2 is effectively a complaint that the Tribunal failed to revisit a determination of fact made approximately six years earlier in the Builder's Liability Decision;

(2) the appellant's submission that the Tribunal should have revisited an earlier finding of fact, is a collateral attack on the finality of the Builder's Liability Decision;

(3) the Tribunal was correct not to revisit that finding in the Builder's Liability Decision;

(4) the Tribunal was also correct to find that the appellant's claim was an abuse of process.

1. Relevantly, in relation to Ground 3, the respondent submits that:

(1) this ground attacks the Tribunal's previous determination to grant appellant leave to be legally represented in the Initial Application based on the appellant's Unsigned Affidavit;

(2) the Primary Decision should be upheld on the basis that no error of fact or law has occurred, given that:

(a) the appellant has not explained how his being granted leave to be legally represented has caused him loss, and it is difficult to understand how he can have suffered a loss;

(b) in any event, the appellant applied for leave to be represented before he retained the respondent. It is difficult to see how the respondent can have any responsibility for any loss suffered;

(c) the appellant has not provided any evidence or submissions regarding how the Builder's Liability Decision is incorrect in relation to the appellant's Unsigned Affidavit;

(d) the appellant's Unsigned affidavit appears to have been prepared by Adams & Partners Lawyers on or around 15 November 2016. The respondent was not involved in the preparation or creation of the appellant's Unsigned Affidavit;

(e) on the second day of the Hearing, the Tribunal stated that the affidavits of the appellant that were in evidence were dated 7 September 2017, 4 January 2017 and 21 January 2017;

(f) the appellant's Unsigned Affidavit was lodged with the Tribunal on 17 November 2020. The last day of the Hearing was 28 March 2018. The respondent ceased acting for the Appellant on 27 June 2019. The respondent was not involved in the lodgement of the appellant's Unsigned Affidavit at the Tribunal;

(g) there is no basis for any allegations against the respondent in relation to the appellant's Unsigned Affidavit and any allegation should be dismissed.

1. The respondent also provided a transcript of the Tribunal hearing of 16 April 2025.

1. Section 80 of the NCAT Act sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any "question of law" (that is, not an "error of law"), or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel set out a non-exhaustive list of possible questions of law giving rise to an appeal as of right:

(1) whether there has been a failure to provide proper reasons;

(2) whether the Tribunal identified the wrong issue or asked the wrong question;

(3) whether a wrong principle of law had been applied;

(4) whether there was a failure to afford procedural fairness;

(5) whether the Tribunal failed to take into account relevant (that is, mandatory) considerations;

(6) whether the Tribunal took into account an irrelevant consideration;

(7) whether there was no evidence to support a finding of fact;

(8) whether the decision was so unreasonable that no reasonable decision-maker would make it.

1. These matters were clarified and expanded by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique). Relevantly, the Appeal Panel stated:

35 It has become commonplace for parties, and their lawyers, to simply copy from various items listed in Prendergast as questions of law and present them in a Notice of Appeal, without modification of clarification to meet the circumstances of the relevant appeal.

36 Commonly, that will be wrong.

37 What constitutes a question of law is vexed and context dependent in the sense that the distinction between matters of fact and of law may turn on the circumstances in which the question arises: Targeted Property Investments Pty Ltd v Look Up Technologies Pty Ltd (No 2) [2023] NSWSC 416 at [33(4)], citing Thomas and Naaz [2023] NSWCA 40 at [52] and Da Costa v The Queen [1968] HCA 51; (1968) 118 CLR 186 at 194; [1968] HCA 51.

...

39 Therefore, discernment and care must be taken to ensure the grounds relied upon by the appellant, properly understood, raise questions of law and arise in the proceedings; or whether leave is required.

40 In light of the above authorities, a question of law should be articulated with sufficient precision to allow an Appeal Panel to identify it as a pure question of law.

1. That said, in circumstances where an appellant is not legally represented, it is appropriate for the Appeal Panel to approach the issue by looking at the grounds of appeal generally, and to determine for itself whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent to the appeal: Prendergast at [12]. Also see the various authorities on this issue referred to in Unique at [28]; followed recently in Ramos Miguel Pty Ltd v Tinoco [2026] NSWCATAP 28.
2. I have carefully examined all the appellant's materials. I am unable to discern any question of law being raised. That means that the appellant requires leave to prosecute his appeal.

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because:

(1) the decision of the Tribunal under appeal was not fair and equitable; or

(2) the decision of the Tribunal under appeal was against the weight of evidence; or

(3) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSAWCATAP 17_,_ the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84](2) that:

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

(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.

1. 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 NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].
2. As the Appeal Panel stated in Unique:

41 Where the ground of appeal does not raise a pure question of law, the appellant may seek leave to appeal.

42 The principles governing an application for leave to appeal under the NCAT Act are well‑established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the courts. It is enough, as a summary, to refer to Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28], where Gleeson JA (on behalf of the bench) said:

Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.

(Citations omitted)

43 Further, as Basten JA said (White JA agreeing) in Hungry Jack's Pty Ltd v Fourtounas [2020] NSWCA 325 (Hungry Jack's) at [9]:

... more is required than identification of error on the part of the trial judge, even if it can be said that the error is reasonably clear. Generally, the court will also need to be satisfied that there is a matter of some public importance engaged and that the costs of further litigation are not disproportionate to the amount in issue. Further, it should be established that, to leave any putative error uncorrected, would give rise to a substantial miscarriage of justice." (Citation omitted)

1. Before considering the grounds of appeal, it is appropriate to briefly summarise the Primary Decision.
2. By way of general remarks, the Primary Decision was detailed, lengthy, and entirely orthodox in its organisation and structure.
3. At [1]-[28], the Tribunal set out a procedural history of the matter, and referred to the filing of the Initial Application, the first and second applications of the appellant to be legally represented and the First and Second Legal Representation Decisions.
4. At [31], the Tribunal notes that the appellant had two claims against the respondent; the first it described as "the hearing claim"; and a second which it described as "the post-judgment claim")
5. At [32], the Tribunal summarises the hearing claim as follows:

32. In respect of the Hearing Claim, it appears that the Applicant alleges that the Respondent was negligent:

(a) in preparing for the Hearing in failing to adequately consider the material provided by the Applicant for the Initial Application.

(b) during the Hearing, by failing to demonstrate to the Tribunal that Mr. Verinder, Ms. Indorato's building expert, lied about the appropriate applicable Australian Standards.

(c) during the Hearing, by failing to use the statutory declaration of Mr. Franco Aloe sworn on 18 November 2016 during the Hearing.

(d) during the Hearing, by failing to use the letter from Ms. Indorato dated 6 January 2015.

(c) during the Hearing in failing to use the transcript of the Hearing, specifically in relation to Ms. Indorato's comment "There is nothing in writing agreement between Applicant & myself and Ms. Indorato's inconsistent evidence throughout the hearing;

(d) during the Hearing for allowing fan incorrect calculation of damages.

1. At [33], the Tribunal summarises the hearing claim as follows:

In respect of the Post-Judgment Claim, it appears that the [appellant] alleges that the Respondent was negligent:

(a) in failing to advise the [appellant] to appeal the [Builder's Liability Decision]; and

(b) because the affidavit filed with the Tribunal on 17 November 2020 [appellant's unsigned affidavit] was used to the [appellant's] detriment.

1. Paragraphs [34]-[38] introduce the topic of the limitation period for bringing consumer claims to the Tribunal.
2. At [35], the Tribunal notes that it does not have jurisdiction to hear and determine a consumer claim if the cause of action giving rise to the claim first accrued more than three years before the lodgement of the claim (Fair Trading Act 1987 (NSW) (FT Act), s 79L(1)) (Limitation Period).
3. At [36], the Tribunal states that as the appellant lodged his application against the respondent on 13 December 2024, in circumstances where the Builder's Liability Decision was published on 22 January 2019, the Tribunal did not have jurisdiction to hear and determine the appellant's claim.
4. At [37], the Tribunal then notes that pursuant s 41 of the NCAT Act it had the discretionary power to extend the Limitation Period, so long as the discretion was exercised judicially and consistent with the "statutory command" in s 36 of the NCAT Act to "facilitate the just, quick and cheap resolution of the real issue in the proceedings".
5. At [38], then Tribunal then discusses the issues relating to an extension of time enunciated by the Appeal Panel in Jackson v NSW Land and Housing Commission [2014] NSWCATAP 22, noting that the Tribunal is required to consider, the length of the delay, the reasons for the delay, the applicant's prospect of success and the extent of any prejudice suffered to a respondent.
6. At [39]-[41], the Tribunal then recites the respondent's submissions.
7. At [43], the Tribunal notes that by 7 October 2020, "at the very latest", the appellant was on notice of the possibility of commencing a claim against the respondent.
8. At [45], the Tribunal indicates that it agrees with the respondent's submissions, given the Court of Appeal's decision in Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104.[9]
9. The Tribunal concludes:

46. In the circumstances of this case I am bound by the deliberations of the Court of Appeal in [Itek] that the Limitation Period should not be extended, particularly after six years where on the evidence before the Tribunal the Applicant was aware of the requirements to lodge an appeal in the Tribunal against the decision at first instance by Senior Member Simon, especially when the applicant in that case Ms. Indorato had appealed herself and the Applicant here was on notice about time limits regarding lodging a claim against the Respondent from correspondence from the Legal Service Commission. While no satisfactory explanation has been given (if there could be one to allow a lapse of six years) it is not determinative but as stated by Ipp AJA ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave.

47. As noted, a limitation provision is the general rule, and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament.

48. I also agree that a very substantial period of 6 years has passed and since many of the relevant facts and events of the Applicant's Claim relies on oral conversations with minimal corroborating evidence, the Respondent will suffer from prejudice if the Applicant's Extension Application is granted given the uncertainty of human memory and the likelihood that critical facts will not be recounted with the greatest of accuracy.

1. The Tribunal then goes on to consider the appellant's claims about the Senior Member's conduct of the hearing. The Tribunal states at [49] that even if it were minded to grant an extension of time to lodge the application, it is appropriate to examine the substance of the claim, which could be summarised as a claim regarding the conduct of the respondent at the hearing, and a claim that the appellant was not advised that he could appeal.
2. As to the claim that the respondent's neglect of duty caused the appellant's lack of success in the Initial Application, the Tribunal notes at [52] those claims were "thoroughly examined" by the Appeal Panel in the appellant's Appeal Decision. The Tribunal noted that the Appeal Panel considered the evidence before the Tribunal and the statutory declaration of Mr Aloe. The Tribunal noted that the Appeal Panel held that the appellant's case concerning responsibility for the concrete work for the rear patio does not have more substantial merit than being fairly arguable.
3. As to the issue in regards to an advocate's immunity, the Tribunal accepted the respondent's submission provided a "complete immunity" to the haring claim: Primary Decision at [56].
4. In relation to the alleged failure of the respondent to advise the applicant to appeal the Builder's Liability Decision, the Tribunal observed at [57] that the case depended almost entirely upon the appellant's recollection and events that occurred several years ago. The Tribunal stated at [57]:

Given the length of time that has passed, while oral testimony maybe of value, oral recollection of actual conversations should be treated with care and caution due to the fallibility of human memory. For an issue where a party may have a self-interest, evidence must be treated with caution when a party relies upon an uncorroborated recollection of statements that were made many years ago. In the absence of a reliable contemporaneous record, or another form of satisfactory corroboration, it is difficult for the evidence to achieve the requirement level of satisfaction.

1. The Tribunal found at [58] that a file note of the respondent and an email of 25 January 2019 forwarded by the respondent to the appellant clearly showed that:

(1) the Respondent did advise the Applicant that he could appeal, and if he wanted to then he must do so within 28 days,

(2) the Applicant told the respondent to "leave it with him."

(3) the applicant's son informed the Respondent that he would appeal using a different lawyer (a well-known criminal lawyer?).

1. At [59], the Tribunal also found that any missed opportunity to appeal had been "closed off" by the Appeal Panel in the Builder's Appeal where it held at [108] that:

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 ... .

1. In its ultimate conclusion, the Tribunal stated at [60] that the appellant's application to extend the Limitation Period should be dismissed on the basis that:

(1) the length of the delay is excessive and unreasonable, being a period of almost six years;

(2) the appellant had failed to demonstrate any reason for his delay in lodging these proceedings;

(3) given the significant period of time that has passed, it would prejudice the respondent due to fallibility of human memory, as well as the stress, inconvenience and potential cost of further litigation; and

(4) the appellant has not demonstrated that his case had more substantial merit than merely being fairly arguable.

1. This is a matter in which the appellant clearly feels a very real sense of grievance at previous decisions of the Tribunal, the conduct of Tribunal Members, the conduct of his lawyers and the outcome of his various applications.
2. I appreciate that as a largely unrepresented litigant, he found the procedures of the Tribunal to be confusing and difficult to understand.
3. However, as the Appeal Panel has stated on many occasions, and as recently in Ramos Miguel in a decision published on 4 February 2026, an appeal is not an opportunity to rerun a hearing. And it is certainly not an opportunity to rerun a matter which was heard in 2018, in respect of which a decision was published in 2019 (being the Builder's Liability Decision). This appears to be what the appellant is attempting to do, in circumstances where the appellant appealed the Builder's Liability Decision, with his appeal being dismissed.
4. What has to be recalled is that the appellant is appealing from the decision of the Tribunal in his claim against his former solicitor, for her provision of legal services to the appellant in 2018 and 2019.
5. The appellant has been on notice that the fact that the legal services were provided as long ago as 2018 and 2019 was an issue, as in the Tribunal's directions of 17 January 2025 the Tribunal noted a "threshold issue whether the claim [was] out of time" and stated that this issue would be determined at the final hearing.
6. And this was the initial issue that the Tribunal considered in the Primary Decision. For the reasons summarised above, the Tribunal refused to extend the time for the filing of the application, which had the consequence of the appellant's application being dismissed.
7. The grounds of appeal are not articulated with any precision by the apparent. Indeed, the grounds of appeal are barely articulated at all. The respondent was being generous in framing the grounds of appeal in the manner which I have set out above.
8. The appellant agreed with me at the appeal hearing that those grounds as articulated or summarised by the respondent reflected his grounds of appeal, notwithstanding that he was largely trying to re-agitate matters concerning the Builder's Liability Decision in respect of which he has already (unsuccessfully) appealed. Indeed, during the appeal hearing, I had to keep bringing the appellant back to focus on the fact he was appealing the Primary Decision, not the Builder's Liability Decision.
9. Less still was he appealing the interlocutory Second Legal Representation Decision where the Tribunal made taken into account the appellant's Unsigned Affidavit. As the Second Legal Representation Decision was favourable to the appellant, it is not comprehensible how he was disadvantaged by the Tribunal taking into account the content of his Unsigned Affidavit, if indeed it did.
10. There was nothing advanced by the appellant which has caused me to doubt the correctness of the Primary Decision.
11. As for the grounds of appeal as articulated by the respondent, there is nothing of substance in any ground.
12. As to the first ground of appeal (as suggested by the respondent), namely that the appellant's application was not read "in full", given the Tribunal's careful treatment of the issues before it in the Primary decisions, which I have summarised above, there appears to be no substance in this ground of appeal.
13. As to the second ground of appeal (as suggested by the respondent), namely that the Tribunal deliberately did not include critical evidence, the excluded evidence is not identified and again there appears to be no substance in this ground of appeal. As the respondent submits, this ground is effectively a complaint that the Tribunal failed to revisit a determination of fact made almost six years previously in the Builder's Liability Decision.
14. As to the third ground of appeal, the Tribunal provided incorrect procedural directions, I am not persuaded that this ground actually arises from the appellant's submissions.
15. I am conscious that those grounds were drafted by the respondent not the appellant, albeit adopted by the appellant during the course of the appeal hearing.
16. For completeness therefore, I will return to consider the appellant's grounds articulated in his Notice of Appeal, in his six pages of handwritten submissions filed on 16 October 2025, and in his submissions filed on 23 January 2026.

1. These are set out at [34] and [35] above.
2. Self-evidently, there is no coherent ground of appeal articulated.

1. The principial point raised in the first and second pages of these submissions is that the Tribunal and the respondent failed to determine "with all of the evidence", that the appellant had no contract with the homeowner. The issue of whether there was a contract between the appellant and homeowner was exhaustively considered in the Builder's Liability Decision, the Tribunal finding that there was.
2. An additional point raised in the second page of the submissions related to the undated letter from the homeowner to the respondent referred to above. Again, this letter relates to the Builder's Liability Decision (which is not the subject of this appeal) and not the Primary Decision (which is).
3. The point raised in the third page of the submissions relates to the quotation of the appellant provided to the homeowner and dated 21 June 2014. The appellant states that the quotation was not signed. While unstated, he means that the quotation was not signed by the homeowner, as the appellant signed or initialled the quotation no less than nine times. Again, this letter relates to the Builder's Liability Decision and not the Primary Decision.
4. The point raised in the fourth page of the submissions raises the same point, namely that the appellant made an offer, which was not accepted by the homeowner. Again, this issue relates to the Builder's Liability Decision, and not the Primary Decision.
5. The point raised in the fifth page of submissions relates to the representation of the appellant by Adams & Partners (which representation is not the subject of the present appeal. In addition, the appellant submits that:

Before Christmas, my lawyer informs me that he got representation.

I asked him in his office, "how did you get that if I did not appeal?

He answered "I know Simons, her sister and family. They come in here for help & advice.

A long time later, after much effort to get a copy of an affidavit, I was alleged to have signed, it came to light that Member Simons used an affidavit I did not sign. This is against the law and a criminal matter.

This action by NCAT, has been so damming towards me!

(incorrect reference to Senior Member Simons, not Senior Member Simon, as in original)

1. As has previously been noted, this submission raised an allegation which, as best as I can understand, was prepared by Adams & Partner, not the present respondent. In addition, it relates to the Builder's Liability Decision, and not this appeal.
2. Finally, the submission appears to raise unfounded and scandalous allegations in respect of Senior Member Simon, although true it is the Senior Member does list the unsigned affidavit of the appellant at [21](1) of the Builder's Liability Decision.
3. There is nothing of any substance in relation to the present appeal in the appellant's submissions filed on 16 October 2025.

1. The first paragraph of these submissions attacks the conduct of Moray & Agnew in advising the respondent. This submission appears to be based on a misunderstanding, repeated at the appeal hearing, that while the respondent was not permitted to be legally represented at the appeal hearing, she was nevertheless entitled to seek and rely on legal advice.
2. The second paragraph of these submissions is a complaint about Moray & Agnew providing documents to the appellant pursuant to directions, and a complaint (developed in the third paragraph) about the conduct of the respondent.
3. As set out above, the appellant then goes on to reiterate "what my matter is about", namely that the respondent "did nothing in helping [his] representation! Nothing", but "she took [his] money? Up front!"
4. In the balance of the submissions, the appellant states his opinion that the respondent failed in her representation of him, and had no experience in construction law, and that Senior Member Simon breached the Tribunal Code of Conduct.
5. To the extent that the appellant complains about the respondent's representation, there appears to be no substance in the complaint and, as I have pointed out repeatedly, this is an appeal in relation to the Primary Decision, where.an error has to be demonstrated in respect of that decision.
6. To the extent that the appellant complains about the Builder's Liability Decision and the conduct of Senior Member Simon, neither issue can be agitated in this appeal and to the extent that they are the submissions are misconceived and without substance.

1. This appeal is an inappropriate use of Tribunal resources and various Members' time including this Appeal Panel. The appellant stressed in oral submissions that he was a builder with 40 years' experience who never had a claim brought against him and that, to use the vernacular, felt that he had been "ripped off" by a solicitor who charged him a large amount of money with no acceptable result.
2. All that said, and giving the appellant every indulgence and being sympathetic of his position, the appeal rises no arguable grounds of appeal. The appellant's submissions were entirely misconceived and confused. No clear or rational, ground of appeal was raised with the result that the appeal was entirely without substance.
3. Leave to appeal the Primary Decision must be refused.

1. As the Appeal Panel noted recently in Tanwar Institute of Professional Studies Pty Ltd v Ruggeri [2025] NSWCATAP 326, and in words which I adopt in this appeal, it is difficult to escape the conclusion that the appellant is simply seeking to reagitate factual findings of the Tribunal that were available to it.
2. That statement is relevant not just to the appellant's reagitating of the findings in the Primary Decision, but also in relation to the Builder's Liability Decision which was published in 2019.
3. As the Appeal Panel has stated on many occasions, an appeal does not simply provide a losing party in the Tribunal with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]; Nguyen v Nguyen [2025] NSWCATAP 238 at [40].
4. As the Tribunal Guideline, Internal Appeals (November 2023) states at [4], generally, an appeal is not an opportunity to have a "second go" at a hearing.
5. The application for leave to appeal is refused with the consequence that the appeal is otherwise dismissed.

1. On 17 February 2026, that is after the decision had been reserved and in fact at a time when these reasons for decision had been prepared and sent to the Registry for publication, a submission was received from the appellant.
2. I have had no regard to that submission, which was provided without leave and appears not to have been provided to the respondent.
3. The remarks of the Appeal Panel in Murphy v Trustees of Catholic Aged Care Sydney [2019] NSWCATAP 37 bear repeating:

107 As Mason J noted in Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 at [29]:

The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.

108 To similar effect, see Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28 per McHugh J at [29] (with whom Gleeson CJ agreed):

Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing - ordinarily seven to fourteen days. But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.

109 See, too, the powerful guidance of a unanimous Court of Appeal in Bale v Mills [2011] NSWCA 226 at [57] to [61], which we relevantly paraphrase as follows:

the High Court, intermediate courts of appeal and other courts have deprecated in strong terms the filing of material after an appeal without leave being given;

not only have the parties and their legal representatives no right (whether they agree among themselves to do it or not) to place before the court (or a tribunal) without prior leave further material after an appeal has been heard, it is wrong. It undermines and derogates from the principle of the open administration of justice;

the consequence of this is not only that sending submissions without leave to the court (here the Appeal Panel) is wrong, but also the court (here the Appeal Panel) may and generally will ignore what has been sent.

1. For these reasons I have paid no regard to the submissions of the appellant provided to the Registry on 17 February 2026.

1. In the event that the respondent seeks costs, I have included a timetable in my orders for the filing of submissions (and if necessary evidence) as to costs.
2. I propose to deal with costs on the papers and without a hearing: see Westerweller v The Owners Strata Plan No 18482 [2023] NSWCATAP 113 at [85]. Any party opposing that approach must address that issue in their submissions.
3. Submissions are to be limited to five pages, and must identify the relevant costs rule.

(1) Leave to appeal is refused and the appeal is otherwise dismissed.

(2) If the respondent seeks its costs of the appeal, it is to file and serve any submissions (and if necessary evidence) as to costs on or before 5 March 2026.

(3) The appellant may respond on or before 19 March 2026.

(4) The respondent may reply on or before 26 March 2026.

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.

Grammatical errors corrected to paragraphs, 24, 38, 42 (2), 92 129 and 130

[1] The evidence does not disclose when the application was filed.

[2] It is not clear when the reasons for decision were published, as the cover sheet to the reasons states that the hearing dates for the homeowner's appeal were 28 March and 16 April 2019, but that the date of orders were 21 January 2019 with a decision date of 20 January 2019.

[3] In the original handwritten application the word "all" is underlined three times.

[4] A reference to Moray & Agnew, Solicitors, who were advising the respondent.

[5] A reference to the Hon Justice Lea Armstrong, the President of the Tribunal.

[6] A reference to Mr Stuart Westgarth, who is a Deputy President of the Tribunal.

[7] Then Senior Member Simon constituted the Tribunal in the Second Legal Representation Decision and the Builder's Liability Decision.

[8] I have not referred to the fact that the appellant made a number of complaints to the Office of the Legal Services Commissioner in respect of the respondent, as those complaints were irrelevant to my task.

[9] Incorrectly referred to in the Primary Decision as Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104.