Owners Corporation SP 76269 v Draybi Bros Pty Ltd

NCAT Appeal Panel|2014-03-24|Before: Wright J

Solicitors: Bannermans Lawyers (Appellant) Doyles Construction Lawyers (Respondent) File Number(s): AP 14/0008 Decision under appeal Date of Decision: 2014-01-30 00:00:00 Before: M Harrowell, Principal Member File Number(s): HB 12/57430

reasons for decision 1The appellant, Owners Corporation SP 76269, is seeking to leave to appeal against a decision of the Civil and Administrative Tribunal of New South Wales (NCAT) dismissing an application for orders against the respondent, Draybi Bros Pty Ltd, in relation to allegedly defective building works. The claimed amount was $480,000. 2As the decision at first instance was made by NCAT under the transitional provisions in cl 7 of Schedule 1 to the Civil and Administrative Tribunal Act 2013 (the Act), the Appeal Panel raised with the parties concerns as to whether it had jurisdiction to hear and determine the appeal, given the terms of cl 7(3) and the definition of "internally appealable decision" in the Act. Essentially the same issue arose in another matter, NSW Land and Housing Corporation v Diab [2014] NSWCATAP 8, and the Appeal Panel raised the same concerns with the parties to that matter. 3After receiving written submissions from the parties, the question of whether the Appeal Panel had jurisdiction was heard as a preliminary question on 24 March 2014 in both matters. At the end of that hearing, the Appeal Panel announced its conclusion that the Panel did have jurisdiction and indicated that it would publish its reasons for so concluding at a later time. The Panel also made directions on that occasion for the preparation of this appeal and set it down for hearing. 4These are the Appeal Panel's reasons for concluding that it has jurisdiction to hear and determine this appeal in Owners Corporation SP 76269 v Draybi Bros Pty Ltd. Separate reasons for decision have been produced in relation to the matter of NSW Land and Housing Corporation v Diab.

Procedural History 5The application was lodged in the Consumer, Trader and Tenancy Tribunal (CTTT) on 14 November 2012. The matter was first listed for direction in the CTTT on 24 January 2013 when the Tribunal, Deputy Chairperson Harrowell, identified that there was an issue as to whether or not the application was made out of time. As a result, the parties were directed to file and serve written submissions with any supporting documents on that issue. The matter was listed for a hearing on the issue of whether the application was out of time on 28 March 2013 and 4 June 2013. Although the oral hearing was completed the parties were directed to file further written submissions after which the CTTT reserved its decision. As at 31 December 2013, no decision had been made in the matter. 6On 1 January 2014, NCAT was established and on its establishment the CTTT was abolished: see the Act, s 7 and cl 3 of Schedule 1. In accordance with the transitional provisions of the Act, in particular cl 7 of Schedule 1 to the Act, Deputy Chairperson Harrowell of the CTTT who had heard the matter prior to 1 January 2014 was to continue and to determine it sitting as a Principal Member of NCAT. 7On 30 January 2014, Principal Member Harrowell delivered his decision dismissing the application together with his reasons for decision in the matter. 8On 4 February 2014, the appellant received a copy of the decision dismissing the application and the reasons for decision. On 17 February 2014 a notice of appeal was lodged under the Act, s 80.

The Appeal Panel's Concerns 9When the appellant's notice of appeal was lodged, the Appeal Panel was concerned as to the operation, if any, of the transitional provisions in relation to the appellant's right of appeal from the decision in the proceedings at first instance. In particular, the concern was whether the transitional provisions required the appellant to appeal to the District Court rather than the Appeal Panel of NCAT. 10The concern arose in this way. The proceedings at first instance fell within the description of "part heard proceedings" in cl 7 of Schedule 1. As a consequence they were to be determined in accordance with cl 7(2). In these circumstances, under cl 7(3)(b), "the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had [the NCAT legislation] not been enacted continue to apply". The question which concerned the Appeal Panel was whether the provisions of any Act which would have applied in respect of the proceedings had the NCAT legislation not been enacted and which continued to apply by operation of cl 7(3)(b) included the appeal provisions found in s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the CTTT Act). If this was so, it could be argued that the appeal in the present matter should be heard by the District Court and the Appeal Panel of NCAT did not have jurisdiction to hear and determine the appeal. 11Further, the Appeal Panel was concerned that the definitions of "internally appealable decision" and "general decision" in the Act had the consequence that the decision at first instance was not "an internally appealable decision" within the meaning of ss 80 and 32 of the Act. Consequently, on this basis as well, it could be argued that the Appeal Panel did not have jurisdiction. 12Because of these concerns, the Appeal Panel gave the following directions on 24 February 2014: 1. The appellant, if it wishes to do so, file and serve written submissions including submissions on the following questions: (a) Does NCAT have jurisdiction to hear and determine this appeal? and in particular: (b) Was the decision appealed from made in "part heard proceedings" within the meaning of cl 7(2) of Schedule 1 to the Civil and Administrative Tribunal Act 2013 (the Act)? (c) If the answer to (b) is: Yes, does cl 7(3) of Schedule 1 to the Act have the effect that any appeal from a decision made in "part heard proceedings" such as the decision in the present matter is to be made under the legislation which would have been applicable had the NCAT legislation not been enacted? (d) Was the decision appealed from an "internally appealable decision" within the meaning of ss 80 and 32 of the Act? on or before 7 March 2014. 2. The respondent, if it wishes to do so, file and serve written submissions including submissions on the questions referred to in the preceding direction on or before 14 March 2014. 3. The parties have leave to approach the Registrar to obtain a date to have this appeal heard at the same time as the preliminary question in the appeal number AP 14/0006 NSW Land & Housing Corporation v Diab on the question of whether the Tribunal has jurisdiction to hear and determine this appeal for half a day either the week commencing 17 March 2014 or the week commencing 24 March 2014. 13The parties filed written submission in accordance with those directions and a hearing on the preliminary question of whether the Appeal Panel of NCAT has jurisdiction to hear and determine this appeal took place on 24 March 2014 at the same time as the hearing on the same question in NSW Land and Housing Corporation v Diab.

Summary of Reasons 14In its decision in Diab, the Appeal Panel provided reasons for concluding that it had jurisdiction to hear and determine that appeal. Those reasons are also applicable to the preliminary question in the present matter. The fact that the application to the CTTT in this matter was under the Home Building Act 1989 and not the Residential Tenancies Act 2010 does not affect the validity of the reasoning in Diab or its applicability in the circumstances of the present matter. As a consequence it is not necessary to repeat in these reasons for decision what has been said in Diab. It is sufficient to state in summary our reasons for concluding that the Appeal Panel had jurisdiction to hear and determine the application for leave to appeal and any appeal that may result if leave is granted in this matter as follows: (1)The Appeal Panel has the power to determine its jurisdiction to hear and determine this application for leave to appeal and any resultant appeal: Diab at [13]; (2)For the purpose of the transitional provisions, in particular cl 7 of Schedule 1 to the Act, the current proceedings were "pending proceedings" as defined in cl 6(1) in that they had been commenced in the CTTT before 1 January 2014 and had not been finally determined by that date. Furthermore, they were "part heard proceedings" as defined in cl 6(1), in the light of the analysis in Diab [20] to [25], because: (a)they were pending proceedings; and, (b)the CTTT had begun to hear but had not determined the proceedings before 1 January 2014; (3)Accordingly, after 1 January 2014, Deputy Chairperson Harrowell of the CTTT could, under cl 7(2), continue to determine the proceedings sitting as a Principal Member of NCAT exercising all the powers and functions which had previously been vested in the CTTT. Under cl 7(3)(b) the provisions of such Acts as they continued to apply for the purposes of disposing of the matter at first instance do not, however, govern the appeal rights available in respect of Principal Member Harrowell's decision at first instance for the reasons given in Diab at [28] to [34]. As a result, the appellant was not required to appeal to the District Court under the previous legislation which applied to appeals from the CTTT. (4)The decision at first instance in this matter was an "internally appealable decision" within the meaning of ss 80 and 32 of the Act, applying substantially the same reasoning as is found in Diab at [36] to [52] and having regard to the fact that the Home Building Act 1989 was the legislation which relevantly enabled NCAT to make the decisions and exercise the functions in this matter.

Conclusion of Jurisdiction 15On the basis set out above, the Appeal Panel has jurisdiction to hear and determine this application for leave to appeal and any appeal for which leave may be granted.

Costs 16Mr Carter, who appeared for the respondent in this matter, submitted that an order for indemnity costs should be made in the respondent's favour. As the respondent was not successful in contending that the Appeal Panel did not have jurisdiction, it would not be appropriate to order indemnity costs. That is not to say, however, that the costs, if any, of this application should be determined at this time. The Appeal Panel is of the view that it would be more appropriate to reserve the question of costs in relation to the hearing of the preliminary question so that it can be dealt with as part of the costs to be awarded, if any, in respect of the whole application for leave to appeal. Accordingly, the question of costs is reserved.

Directions for Further Conduct of the Appeal 17Having announced at the hearing on 24 March 2014 its decision that it had jurisdiction in relation to the application for leave to appeal and any consequent appeal, the Appeal Panel went on, after hearing further from the parties, to make directions for the further preparation of the matter. The following directions were made: (1)The Appellant file and serve any further evidence upon which it will seek to rely and any written submissions on the question of leave to appeal on or before 4 April 2014. (2)The Respondent file and serve any evidence in reply and any written submissions on the question of leave to appeal on or before 2 May 2014. (3)The Registrar is to liaise with the parties to obtain a suitable date for an oral hearing on the application for leave to appeal on a date after 5 May 2014. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 April 2014

Consumer, Trader and Tenancy Tribunal Act 2001(NSW)

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