The Rolled Kerb Issue
38It was a condition of the development approval for the carrying out of the building work in question that a rolled kerb be installed along Minimus Lane. Minimus Lane gave vehicular access to the site of the strata development. In so far as it may be relevant, the rolled kerb was to facilitate vehicles safely passing each other when entering or leaving the development.
39The appellant's submissions in this regard depended in part upon the proposition that completion of the rolled kerb was essential to practical completion of the works. The lack of fairness and the inequity of the decision were relevantly said to arise out of a failure to give proper consideration to the evidence relating to the rolled kerb work. The appellant submitted in [21] of its written submissions that:
It is common ground between the Owners, the Builder/Respondent, and the Tribunal's Reasons for Decision that the rolling kerb work was not attended to until after 15 November 2005. The issue is whether those works were relevant to 'practical completion' (as defined in s 3B(2) of the Home Building Act (NSW) 1989). To understand why the Tribunal did not give proper consideration to this issue it is necessary to explain how the evidence was dealt with in the proceedings.
40The background to the claimed lack of fairness and the inequity by not giving proper consideration to the evidence relating to the rolled kerb work was submitted to be as follows:
(1)Being the owners corporation and not involved in the actual building of the strata development, the appellant did not have direct knowledge of what occurred while the building work was being carried out and when it was completed.
(2)The appellant did not find out that the rolled kerb work had not been completed by 15 November 2005 until Auburn Council provided some documents to the appellant on 12 June 2013. One of those documents (referred to in the Tribunal below as annexure or tab C) was an internal council email dated 21 November 2005 stating:
Condition 26 of the DA 442/01 requires rolled kerb to be provided in Minimus Lane from the Development Site to Kitchener Avenue. As this work has not been completed Council requires a $30,000 cash bond in lieu of this work prior to the issue of an occupation certificate.
It should be noted that the occupation certificate was issued on 15 November 2005, that is 6 days before the email, and accordingly the reference to the issue of such a certificate in the email was a mistake and should refer to the release of the linen plans, as found by the Tribunal below at [106] of its reasons for decision.
(3)The oral hearing of the matter had concluded on 4 June 2013 but the parties were required to file written submissions and the appellant's written submissions were not due until later in July and the respondent's material in reply was due after that time.
(4)The appellant wished to put the material obtained from Auburn Council on 12 June 2013 before the Tribunal and spoke to the registry of the CTTT. The registry apparently advised the appellant to the following effect, as recorded by a representative of the appellant in a file note: "Vanessa [a member of staff of the CTTT registry] stated that an application to adduce further evidence was not required by the applicant [appellant]. Instead, she advised the applicant to include a covering letter to the submission listing request and list of further evidence". This the appellant did.
(5)The additional documents which the appellant submitted together with its written submissions were received by the Tribunal and admitted into evidence when the respondent did not object to them - see [62], [67] and [68] of the reasons for decision below. Both parties made submissions concerning those documents.
(6)The respondent submitted that the rolled kerb work fell outside the boundary of the site and that the absence of that work was a minor omission that did not "prevent the works from being reasonably capable for their intended use" - see [25] of the appellant's written submissions.
41Against that background, the appellant submitted that the decision was not fair and equitable because:
(1)the respondent's submissions referred to above "were unsupported by any evidence. They were also false." and the respondent's conduct of its case was "at best forensically cute and at worst actively misleading" - see [26] and [30] of the appellant's written submissions;
(2)the issues and arguments concerning the rolled kerb work "were not exercised in the hearing" and the Tribunal embarked on a "ramble of its own" when it held in [123] of its reasons for decision that the fact that the Council required a cash bond in lieu of the rolled kerb work supported the conclusion that the respondent had not continued to do work on or after 14 November 2005 - see [29] and [30] of the appellant's written submissions; and
(3)there was certain additional evidence now available including an email from Auburn Council to a representative of the appellant dated 11 February 2014 and evidence that an officer of Auburn Council could give concerning other works such as installation of stormwater grates and gulleys and widening of the entrance in Minimus Lane - see [31] and [32] of the appellant's written submissions.
42As to the contention that the respondent's submissions were unsupported by evidence, false, cute or misleading, this overlaps to some extent with the second issue - the misleading submissions and evidence issue. Nonetheless, the Appeal Panel will deal with the attack on the respondent's submission relating to the rolled kerb work here and will deal with the appellant's other submissions in relation to false evidence and other matters later.
43The Appeal Panel does not accept these submissions that the respondent's submissions were unsupported by evidence, false, cute or misleading for a number of reasons.
44First, the Tribunal below had before it plans of the site and the building works, the contract under which the work was performed and other material indicating the nature and location of the works. Before us, the appellant did not refer in detail to this evidence and did not seek to demonstrate by reference to the material which was before the Tribunal below that such material could not support a submission that the rolled kerb work fell outside the boundary of the site. Indeed, Auburn Council's email of 21 November 2005 referred to above stated that "Condition 26 of the DA 442/01 requires rolled kerb to be provided in Minimus Lane from the Development Site to Kitchener Avenue". This suggests that the rolled kerb work in question was not on the site of the development but went from the site down Minimus Lane to Kitchener Avenue. From the material before us and from the Tribunal's reasons for decision, the Appeal Panel is of the view that there is no sufficient basis for concluding that the submission complained of was without evidentiary foundation.
45Similarly, the material before the Tribunal below also defined the works to be carried out by the respondent/builder under its contract to perform the building work. The Appeal Panel was not taken to any of that material in detail and the appellant did not attempt to demonstrate that the material before the Tribunal could not possibly support the submission that the rolled kerb work was a minor omission that did not prevent the works from being reasonably capable of being used for their intended use. From the material before us and from the Tribunal's reasons for decision, we are satisfied that such a submission was open to the respondent in the circumstances. We therefore reject the submission that the respondent made submissions in this regard which were unsupported by the evidence.
46Furthermore, even if the respondent had made such submissions without any evidentiary support, it would not necessarily follow that the decision of the Tribunal which received those submissions could be characterised as not fair and equitable. The appellant would have to establish that the decision making process was tainted in some way by those submissions. If a party makes unfounded submissions to a court or tribunal, that does not have the consequence that the decision reached by the court or tribunal is unfair or inequitable. The appellant did not point to any defect in or tainting of the decision making process in the present case and we are not satisfied that the decision making process as revealed in the reasons for decision was adversely affected by submissions made by the respondent, whether or not they were well founded.
47Secondly, the appellant contended that these submissions of the respondent were false and forensically cute or actively misleading. Whilst it is no doubt the case that the appellant believed that the true facts were otherwise than the respondent submitted, this is insufficient to establish that the respondent's submissions in this regard were "false", "cute" or "misleading" so as to render any decision based on them not fair and equitable. As the Appeal Panel understood it, the appellant's argument was in effect that:
(1)the respondent presented its case by having Mr Raymond Draybi, and later Mr Anthony Draybi, review the respondent's documentation including invoices from sub-contractors or tradesmen, and on the basis of that documentation give their "honest belief and understanding" of when certain work was completed;
(2)because the respondent carried out the rolled kerb work it knew about it and would have had invoices for that work from relevant sub-contractors or tradesmen;
(3)it was cute, misleading and false for the respondent not to put on evidence concerning the rolled kerb work but merely to make submissions that such work was not on the site and was only minor remedial work not necessary for practical completion.
48This argument depends, in part, on the proposition that the respondent carried out the rolled kerb work. The support for this proposition is at best very weak. The evidence before the Tribunal at first instance did not unequivocally establish that proposition and the new evidence now sought to be relied upon (which is referred to in more detail below when the ground in cl 12(1)(c) of Schedule 4 to the Act is being considered) is not clear that the work referred to in paragraphs 2 and 3 of Mr Hadchiti's affidavit of 14 April 2014 was the rolled kerb work. In any event, even if the respondent had carried out the rolled kerb work, there is no reason to hold that this would prevent the respondent from submitting that such work was not part of the relevant building work for the purposes of ss 3B(2) and (3), 18E and 49K of the HB Act and also that any such work was "work (other than work to remedy any defect that does not affect practical completion)" within s 3B(3)(b) of the HB Act. The course adopted by the respondent was permissible. The respondent was entitled to respond to the late documentary evidence put on by the appellant merely by way of submissions. The appellant could have sought the opportunity to have Mr Draybi recalled for further cross examination and to make further submissions to the Tribunal below on the respondent's failure to put on evidence concerning the rolled kerb work and on the submissions made by the respondent. The appellant did not do so. The appellant did not point to any other circumstance that satisfied us that the respondent's submissions in this regard were in fact false, cute or misleading.
49In addition, even if the respondent's submissions on this topic had been false, cute or misleading, this by itself would not render the decision not fair and equitable. It was not submitted that the Tribunal below was led by the respondent's submissions into some error which vitiated the integrity of the decision making process so that it was not fair and equitable. Indeed, at [29] of its written submissions, the appellant stated: "It is difficult to say how much weight the Tribunal gave to the Builder/Respondent's submission, because the Tribunal developed a more decisive theory of its own." Thus, it did not appear to be the appellant's case that the Tribunal even accepted the respondent's submissions which were the subject of the appellant's complaint.
50In the circumstances, the Appeal Panel rejects the submission that the respondent's submissions of which the appellant complains were unsupported by evidence, false, cute or misleading. Further, the Panel does not accept that those submissions of the respondent led to the decision below not being fair and equitable.
51As to the submission that the decision was not fair and equitable because the issues and arguments concerning the rolled kerb work were "not exercised" in the hearing, the Appeal Panel is of the view that this submission should also be rejected. The appellant obtained documents from Auburn Council in June 2013 and put them before the Tribunal in July 2013 without objection by the respondent. The appellant made submissions concerning those documents. It could have asked for leave to cross examine the respondent's witnesses on the basis of the information contained in those documents. It did not do so. It was not incumbent upon the Tribunal or the respondent to recall the respondent's witnesses to address that lately obtained evidence. From [68] of the reasons for decision, it appears that the main focus of the appellant's submission in regard to this material was to try to argue that the occupation certificate had not been issued on 15 November 2005. This submission was rejected by the Tribunal below and the appellant now accepts that finding - see [33] of the appellant's written submissions.
52The appellant was given a number of opportunities to address the issues in dispute at the hearing by way of evidence and submissions. The Tribunal below did not reach its decision by going outside those issues. The appellant has not pointed to anything that occurred in relation to the hearing, the evidence, the submissions or the reasons for decision concerning the rolled kerb work which leads to the conclusion that the decision was not fair and equitable. As the Panel perceives it, part of the substance of the appellant's complaint appears to be that it now believes that it could have made different submissions from the submissions it did make in the Tribunal at first instance. That circumstance does not render the decision reached by the Tribunal in the circumstances not fair and equitable.
53The other aspect of the appellant's case in this regard concerns the Tribunal's reasoning in [123] of the reasons for decision. The appellant submitted that this reasoning of the Tribunal was a "ramble of its own". Paragraph [123] of the reasons involves a number of findings or conclusions none of which, in the Appeal Panel's view, was precluded on the material available. It was not submitted that the Tribunal was wrong to find that there was no suggestion on the material before it that the rolled kerb work was ever done or that the work had not been done by 21 November and that was why the Council required a bond. Such findings and reasoning provide no basis for concluding that the decision was not fair and equitable.
54The observation by the Tribunal at [123] that the location of the rolled kerb work suggested that it was not part of the work required to be capable of being used for its intended purpose as the basis for determining practical completion of the work in question involved at least a partial acceptance of the respondent's submission concerning the location of the rolled kerb work being outside of the site. This had been canvassed in submissions made to the Tribunal at first instance. It did not involve the Tribunal deciding the matter on a basis of which the parties were not aware. This part of the reasoning in [123] does not support a conclusion that the decision was not fair and reasonable.
55The reasoning in [123] that, in the absence of evidence to the contrary, the fact that work may have been required to be done to the kerb and that the bond may not have been paid did not provide a basis to conclude that the respondent continued to work on the site on or after 14 November 2005, was logically correct and open to the Tribunal on the material before it. This conclusion may not in fact depend upon whether the work was essential or non-essential, which is a separate issue.
56In [123] the Tribunal also relied upon the issue of the occupation certificate as providing support for "the contrary conclusion", namely that the respondent did not continue to do relevant work on the site on or after 14 November 2005. When the respondent had last attended the site to do work within the meaning of s 3B(3)(b) was a matter in issue in these proceedings and the appellant should have been well aware of that issue when it came to put on its written submissions and evidence. It was open to the Tribunal to infer from the issuing of an occupation certificate by the relevant local council that the building work the subject of the certificate was completed except for any omissions or defects that did not prevent the work from being reasonably capable of being used for its intended purpose, to use the wording of s 3B(2) of the HB Act. The decision as a whole could not be said to be not fair and equitable because of this part in the process of reasoning.
57In its written submission before us, the appellant gave considerable emphasis to the question of the occupation certificate in [33] to [38] but did not press the argument vigorously in oral submissions. The substance of those submissions was that the issuing of occupation certificates by Auburn Council in the relevant period may have been flawed and it would not be safe to infer that because the occupation certificate was issued "there were only minor omissions". This is a submission that could have been made at the hearing if there were evidence to support it. Whether or not such an inference should be drawn as a matter of fact was a matter for the Tribunal at first instance. The submissions or material relied upon by the appellant in this regard do not establish that the decision as whole was not fair and equitable within cl 12(1)(a) of Schedule 4 to the Act.
58As to the remainder of the reasoning in [123], it may be the case that a requirement that the applicant for the Development Application in the present case pay a bond in lieu of completion of certain work before a step could be taken by the Council is somewhat more equivocal in leading to the conclusion that the respondent did not continue to work on the site on or after 14 November 2005 than the Tribunal suggested in the last sentence of [123]. Nonetheless, the requirement for the payment of a bond in lieu certainly does not establish: (a) that the work was ever carried out; (b) that the respondent, as opposed to some other contractor, attended the site to carry out the work; (c) that the work was carried out on or after 14 November 2005 or 10 November 2005; (d) that the work was work under the relevant building contract; or (e) that such work, if it was performed, was not work to remedy a defect that did not affect practical completion (within s 3B(3)(b) of the HB Act).
59The appellant seeks to characterise the Tribunal's reasoning in [123] especially in relation to the "payment of the bond 'in lieu'" as the Tribunal going on a ramble of its own so as to render the decision as a whole not fair and equitable. The Appeal Panel is of the view that this is not so. The Tribunal was entitled to consider all of the evidence before it and draw such factual inferences from that material as it saw fit in relation to issues which both parties had had the opportunity to lead evidence and make submissions. The Tribunal's reasoning in [123] goes no further than that. There is nothing to suggest, nor did the appellant point to any circumstance which indicated, that it had been denied any opportunity to put its case in relation to the documents obtained from Auburn Council in June 2013. How the appellant chose to put its case in relation to those documents was a matter for the appellant.
60In oral submissions the appellant also submitted that the Tribunal below erred in construing the email concerning the payment in lieu because it did not require more evidence from the respondent concerning the rolled kerb work before reaching the conclusion it did. The Appeal Panel does not accept that it was incumbent upon the Tribunal to require the respondent to give further evidence concerning the rolled kerb work. Each party was responsible for preparing and presenting its own case, both evidence and submissions. The Tribunal was not, and should not be, obliged to require one party to lead particular evidence before it could reach a conclusion that was already open on the evidence, such as it was, before the Tribunal. The appellant did not have summonses issued to obtain evidence concerning the rolled kerb work or seek to have the oral hearing re-opened. It could have done so. The respondent and the Tribunal do not have to take responsibility for the fact that the appellant did not do so.
61For all of these reasons, the Tribunal's reasoning and the circumstances of the hearing and determination of the issues relating to when the respondent last attended on site to perform relevant work and the documents submitted by the appellant in July 2013 did not involve any departure from the standards of fairness and equity so that the decision as a whole was not fair and equitable.
62As to the submission that the decision was not fair and equitable because there was now available additional evidence referred to in [31] and [32] of the appellant's written submissions. The Appeal Panel is of the view that this should also be rejected.
63The further evidence is an email from Auburn Council to a representative of the appellant dated 11 February 2014 and evidence which an officer of Auburn Council could give of other works such as installation of stormwater grates and gulleys and widening of the entrance being carried out in Minimus Lane after 14 November 2005.
64This appears to be more relevant to the new evidence ground under cl 12(1)(c) of Schedule 4 to the Act rather than the ground that the decision was not fair and equitable under cl 12(1)(a). Nonetheless, the Panel will deal with relevant aspects of this submission here rather than leave it to be dealt with entirely when considering the appellant's cl 12(1)(c) submissions.
65The email of 11 February 2014 from Auburn Council stated:
Reference is made to your application under GIPA Act 2009 dated 06 February 2014 regarding [XXXX] Amy Street Regents Park.
A search of Council records indicates that the $30,000 bond refund application was approved on 6 March 2006 and has been refunded which was held as security for the footpath.
66On the basis of this material the appellant submitted that "[t]hat bond had been returned to the builder on 16 March 2006 when the required work had been performed" - [31] of the appellant's written submissions. The relevance of that submission is apparently that it supports the conclusion that the builder/respondent attended the site to perform that work between 10 November 2005 and March 2006, although the appellant did not expressly make that connection in its submissions. The Appeal Panel cannot accept these submissions for a number of reasons. First, this email by itself does not provide a basis for concluding that the bond was returned to the builder/respondent, as opposed to the developer or owner of the strata development or some other person who may have lodged the bond.
67Secondly, the email does not establish that the bond was refunded because the work was done rather than because the condition was waived. An earlier statement in the appellant's written submissions should be noted in this regard. At [19], the appellant stated:
As part of the Development Approval (DA) for the building Auburn Council made it a condition, that a rolling kerb be installed along Minimus Lane, increasing the effective width of the alleyway to 5.5 m to better allow vehicles to safely pass each other. This DA condition was later waived so far as requiring the rolling kerb along the entirety of Minimus Lane was concerned, but retained so far as the critical access point where the lane turns into the property of SP76269 (the Access Point).
68A waiver by the Council of the whole or part of the condition would suggest that the rolled kerb in its entirety was never completed and it raises considerable doubt as to whether the rolled kerb work was essential for practical completion.
69Thirdly, the email referred to a $30,000 bond "held as security for the footpath". It is far from clear that this is the same bond as might have been required in respect of the rolled kerb work (at least before the rolled kerb condition was waived in part). A footpath is not the same as a rolled kerb.
70Fourthly, the email does not provide support for the conclusion that such rolled kerb work as was done was carried out by the respondent, as opposed to some other contractor, on the site after 10 November 2005.
71This email is not inconsistent with the decision of reached by the Tribunal below and it does not provide a basis for concluding that the decision was not fair and equitable.
72As to the evidence that Mr Wojceik, an officer of Auburn Council, could give of other works such as installation of stormwater grates and gulleys and widening of the entrance being carried out in Minimus Lane after 10 or 14 November 2005, the appellant's case was that these works were part of the rolled kerb work - [32] of the appellant's written submissions. The appellant provided no basis upon which the Appeal Panel should conclude that these grates, gulleys and widening were part of the rolled kerb work, apart from assertion. The Appeal Panel is not in those circumstances prepared to accept that submission. Furthermore, in order to be of assistance to the appellant's case, it would have to be shown that not only was the work carried out by the respondent after 10 November 2005 but also that it was not work that could be characterised as "work to remedy any defect that does not affect practical completion" within the meaning of s 3B(3)(b) of the HB Act. The appellant has not established that there is a basis upon which the latter of those 2 propositions could be accepted.
73In these circumstances, the Appeal Panel concludes that the email of 11 February 2014 from Auburn Council and the other potential evidence concerning grates, gulleys and widening do not provide a sufficient basis for concluding that the Tribunal's decision was not fair and equitable. Whether it amounts to significant new evidence for the purposes of cl 12(1)(c) of Schedule 4 of the Act will be considered later.
74For all of these reasons the Appeal Panel concludes that the appellant has not established that the decision under appeal in so far as the rolled kerb work was concerned was not fair and equitable for the purposes of cl 12(1)(a) of Schedule 4 to the Act.