Owners - SP 76269 v Draybi Bros Pty Ltd

Introduction 1The appellant seeks leave to appeal from a decision of the Consumer and Commercial Division made on 30 January 2014 dismissing its claims for relief for breaches of warranties under the Home Building Act 1989 (NSW) (the HB Act). The claims were dismissed on the basis that they had been made outside the relevant period under ss 18E and 48K of the HB Act. 2In an application for leave to appeal from a decision of the Consumer and Commercial Division, the Appeal Panel is significantly constrained by the provisions of cl 12 of Schedule 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (the Act). Whilst recognising the harshness of the consequences for the appellant which will flow from this decision, for the reasons set out below, the Appeal Panel has concluded that it cannot be satisfied that the appellant may have suffered a substantial miscarriage of justice on any of the grounds identified in cl 12(1)(a), (b) or (c). Accordingly, leave to appeal cannot be granted in this matter.

Background 3The appellant is a statutory body corporate known as the Owners - Strata Plan No 76269. Strata Plan No 76269 relates to a strata development located in Amy Street, Regents Park. The respondent, Draybi Bros Pty Ltd, was the builder which carried out the building work for the strata development. 4By an application lodged in the former Consumer Trader and Tenancy Tribunal (the CTTT) on 14 November 2012, the appellant sought, amongst other things, rectification of alleged defective building work and an order for payment of an amount of $480,000 on the ground that the respondent had breached the statutory warranties under Part 2C, and in particular s 18B, of the HB Act in respect of the building work for the Amy Street strata development. No causes of action other than breach of the statutory warranties were relied upon. In claiming for breach of warranties under the HB Act, the appellant relied on the extension of the benefit of the warranties to a successor in title under ss 18C and 18D of that Act. 5The building work on the Amy Street development had been carried out in 2004 and 2005. Thus, the question arose as to whether the application lodged on 14 November 2012 should be dismissed because it was made out of time, more than 7 years after the building work was completed, and because the CTTT did not have jurisdiction to hear and determine the application. Hearings in the CTTT on this preliminary question took place on 28 March 2013 and 4 June 2013 and further written submissions and some documentary evidence was received by the CTTT on 8, 23 and 29 July 2013. The CTTT reserved its decision. 6On 1 January 2014, the Civil and Administrative Tribunal of New South Wales (NCAT) was established and on its establishment the CTTT was abolished: see s 7 of the Act and cl 3 of Schedule 1. In accordance with the transitional provisions of the Act, in particular cl 7 of Schedule 1, the Deputy Chairperson of the CTTT who had heard the matter prior to 1 January 2014 continued to sit and determine the matter as a Principal Member of NCAT. 7On 30 January 2014, the Principal Member delivered his decision dismissing the appellant's application together with his reasons for decision in the matter.

Notice of appeal 8On 17 February 2014 the appellant lodged a notice of appeal under s 80 of the Act. 9It can be noted here that the Tribunal's notice of appeal form is a multi-purpose form which allows a party seeking to appeal to complete just one form whether the party is asking for an extension of time in which to appeal, asking for leave to appeal, seeking a stay of the orders or decision appealed from or simply appealing as of right from an internally appealable decision. In addition, the form allows the party to provide other information, submissions and evidence in support of the application or applications the party might be making. This course has been adopted in the Tribunal having regard to the requirement that the Tribunal act with as little formality as the circumstances of the case permit and without regard to technicalities or legal forms (s 38(4) of the Act) and the requirement that the Tribunal's practice and procedures should be implemented so as to facilitate the resolution of issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject matter of the proceedings (s 36(4) of the Act). Having one multi-purpose form has the benefit that a person seeking leave to appeal from an internally appealable decision of the Tribunal only has to obtain and complete one form and does not have to file a draft notice of appeal in addition to their application. In these circumstances and for the sake of simplicity, a party completing a notice of appeal form is called an appellant, even if technically that party might more precisely be considered to be an applicant for leave to appeal. 10The decision appealed from in this matter can be characterised as a final decision of the Tribunal dismissing the application and making consequential orders. In addition, in so far as the decision was based upon the conclusion that the Tribunal did not have jurisdiction to hear and determine the application it could also be characterised as an "ancillary decision" within the definition of that term in s 3(1) of the Act. 11Section 80 of the Act provides: (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance-with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. 12In its notice of appeal the appellant sought leave to appeal under s 80(2) and did not assert that the appellant was appealing as of right on a question of law. 13As the decision at first instance was a decision of the Consumer and Commercial Division, cl 12(1) of Schedule 4 to the Act applied so as to restrict the ability of the Appeal Panel to grant leave to appeal. Clause 12(1) provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied 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). 14The expression "Division decision" in cl12(1) is defined in cl 1 of Schedule 4 and includes a decision of the Consumer and Commercial Division when it is exercising functions under the HB Act by virtue of the definitions of "the Division" and "Division function" in cl 1 and the provisions of cl 3(1) of Schedule 4. 15Given the requirements of cl 12(1) of Schedule 4 to the Act, the notice of appeal form also requires an appellant to indicate whether the decision appealed from is a decision of the Consumer and Commercial Division. If so and the appellant is seeking leave, the appellant is then required to address in the form whether there may have been a substantial miscarriage of justice on one or more of the 3 grounds specified in cl 12(1)(a), (b) and (c) of Schedule 4. The information is to be provided under the following 3 headings: i. Decision not fair and equitable ii. Decision of the Tribunal against the weight of evidence iii. Evidence is now available that was not reasonably available at the time of hearing. 16In its notice of appeal, the appellant provided information under each of these headings. The particular information given in this regard will be addressed below when the Appeal Panel considers each of those grounds. Attached to the notice of appeal was a statutory declaration of Mr John Hadchiti dated 15 February 2014 which provided additional information and attached a number of documents. 17Although an application for leave to appeal may be dealt with on the papers under s 50(1)(a) of the Act, the Appeal Panel considered that it would be more appropriate in the present case to conduct an oral hearing in the matter. Accordingly, on 24 March 2014, the Panel gave directions for the parties to file and serve any further evidence upon which they wished to reply and any written submissions on the question of leave to appeal. The application for leave to appeal was heard on 20 May 2014.

Material relied upon for the Application for Leave to Appeal 18At the hearing of the application for leave to appeal, the appellant relied upon the information provided in the notice of appeal, the statutory declaration of Mr Hadchiti dated 15 February 2014 and an affidavit of Mr Hadchiti of 14 April 2014. With respect to the "new evidence" relied upon by the appellant for the purposes of cl 12(1)(c), which evidence was contained in the statutory declaration and affidavit, it was accepted that such evidence was tendered on the basis that it was material indicating the nature and extent of the "new evidence" and was not relied upon in this hearing as establishing the truth of the matters stated in such evidence. * 19In response, the respondent relied upon the affidavits of Mr R Draybi of 7 February 2013, 27 March 2013 and 12 May 2014, Mr A Draybi of 5 April 2013 and 12 May 2014 and Mr G Hayek of 9 May 2014.

Application for Leave to Appeal 20The appellant submitted that the Appeal Panel could grant leave to appeal because it may have suffered a substantial miscarriage of justice on each of the 3 bases referred to in cl 12(1)(a), (b) and (c) namely: (1)the decision appealed from was not fair and equitable; (2)the decision appealed from was against the weight of the evidence; and (3)significant new evidence had arisen which was not reasonably available at the time of the hearing before the Tribunal. 21We shall deal with each of these bases relied upon by the appellant in turn. Before doing so, however, it is necessary to set out the statutory context to these proceedings and the substance of the decision at first instance in order to appreciate the significance of the matters said to render the decision not fair and equitable or against the weight of the evidence and in order to assess the significance of the "new evidence" for these proceedings.

Statutory Context 22The appellant's claims were only for breach of the statutory warranties arising under Part 2C of the HB Act. Under s 18E, proceedings for breach of statutory warranty were required to be commenced within a specified period. In its form as applicable in these proceedings (by virtue of clause 109 of Schedule 4 of the HB Act), s 18E relevantly provided: (1) Proceedings for a breach of a statutory warranty must be commenced within 7 years after: (a) the completion of the work to which it relates, or (b) if the work is not completed: (i) the date for completion of the work specified or determined in accordance with the contract, or (ii) if there is no such date, the date of the contract. 23In this case it was not in dispute that the work had been completed for the purposes of that section and, accordingly, the appellant had to commence its proceedings within 7 years after the completion of the work to which it related. 24The statutory period for commencement of the proceedings had a further role to play in these proceedings because the jurisdiction of the CTTT (and subsequently this Tribunal) was limited by reference to that period under s 48K(7) of the HB Act. At the time the appellant's proceedings were commenced on 14 November 2012, s 48K provided in part: (1) The Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000 (or any other higher or lower figure prescribed by the regulations). (2) The Tribunal has jurisdiction to hear and determine any building claim whether or not the matter to which the claim relates arose before or after the commencement of this Division, except as provided by this section. ... (7) The Tribunal does not have jurisdiction in respect of a building claim arising from a breach of a statutory warranty implied under Part 2C if the date on which the claim is lodged is after the end of the period within which proceedings for a breach of the statutory warranty must be commenced (as provided by section 18E). .... 25As a consequence of s 48K(7), the CTTT and subsequently this Tribunal did not have jurisdiction to hear and determine the appellant's claims for breach of the statutory warranties if 14 November 2012, the date on which the application was lodged in the CTTT, was after the end of the period specified in s 18E, that is in the present case, 7 years after the completion of the work in question. 26The Appeal Panel notes that even if s 48K applied to the present proceedings in the form it was in between 2005 and early 2012, the effect would be the same as that set out in the preceding paragraph. During the period from before 2005 to early 2012, s 48K(7) mirrored the applicable wording of s 18E as follows: (7) The Tribunal does not have jurisdiction in respect of a building claim arising from a breach of a statutory warranty implied under Part 2C if the date on which the claim was lodged is more than 7 years after: (a) the date on which the residential building work the subject of the claim was completed, or (b) if the work is not completed: (i) the date for completion of the work specified or determined in accordance with the contract, or (ii) if there is no such date, the date of the contract. 27Having regard to these statutory provisions, the Tribunal below was required to address the question of whether 14 November 2012, the date on which the application was lodged in the CTTT, was within the period of 7 years after the completion of the work in question. 28Section 3B of the HB Act makes provision for when residential building work is taken to be completed for the purposes of the HB Act. Although it was only inserted into the HB Act in 2011, s 3B is applicable in the present proceedings by virtue of cl 106 of Schedule 4 to the HB Act, Savings and Transitional Provisions. Clause 106 provides: The amendments made by the amending Act [the Home Building Amendment Act 2011] are made for the purpose of the avoidance of doubt and accordingly (except as otherwise provided by this Part [of which there is none]) those amendments extend to: (a) residential building work commenced or completed before the commencement of the amendment, and (b) a contract of insurance entered into before the commencement of the amendment, and (c) a loss or liability that arose before the commencement of the amendment, and (d) the notification of a loss before the commencement of the amendment. 29Section 3B provides: 3B Date of completion of residential building work (1) The completion of residential building work occurs on the date that the work is complete within the meaning of the contract under which the work was done. (2) If the contract does not provide for when work is complete (or there is no contract), the completion of residential building work occurs on practical completion of the work, which is when the work is completed except for any omissions or defects that do not prevent the work from being reasonably capable of being used for its intended purpose. (3) It is to be presumed (unless an earlier date for practical completion can be established) that practical completion of residential building work occurred on the earliest of whichever of the following dates can be established for the work: (a) the date on which the contractor handed over possession of the work to the owner, (b) the date on which the contractor last attended the site to carry out work (other than work to remedy any defect that does not affect practical completion), (c) the date of issue of an occupation certificate under the Environmental Planning and Assessment Act 1979 that authorises commencement of the use or occupation of the work, (d) (in the case of owner-builder work) the date that is 18 months after the issue of the owner-builder permit for the work. (4) If residential building work comprises the construction of 2 or more buildings each of which is reasonably capable of being used and occupied separately, practical completion of the individual buildings can occur at different times (so that practical completion of any one building does not require practical completion of all the buildings). (5) This section applies for the purposes of determining when completion of residential building work occurs for the purposes of any provision of this Act, the regulations or a contract of home warranty insurance. 30Under s 3B(2), if the contract does not provide for when work is complete, completion of the work occurs on "practical completion of the work" as defined in s 3B(2) and (3). In the present appeal, it was not argued that the contract provided for when work was complete or that the date on which the contractor handed over possession had been established. Consequently, the works should be taken to have been completed for the purposes of ss 18E and 48K on the earliest of the following dates which could be established: (1)the date on which the contractor last attended the site to carry out work (other than work to remedy any defect that does not affect practical completion) - s 3B(3)(b); or (2)the date of issue of an occupation certificate under the Environmental Planning and Assessment Act 1979 that authorises commencement of the use or occupation of the work - s 3B(3)(c); or (3)the date when the work 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 - s 3B(2).

The Decision at First Instance 31The Principal Member held, in determining whether the appellant's proceedings had been commenced within 7 years of completion of the work in question, that completion of the residential building work was to be determined in accordance with s 3B of the HB Act. As the contract under which the work was done did not establish a date by which the work was taken to be complete for the purposes of s 3B(1), completion of the work fell to be determined under s 3B(2) and (3). He then found after detailed consideration of the evidence before him and the parties' submissions that: (1)The occupation certificate had been issued on 15 November 2005; but, (2)the builder last attended the site to carry out work (other than work to remedy any defect that did not affect practical completion), as referred to in s 3B(3)(b), on 10 November 2005. 32Thus, completion of the residential building work was not later than 10 November 2005 having regard to the terms of s 3B(2) and (3). The appellant's application was filed in the CTTT on 14 November 2012 which was more than 7 years after 10 November 2005. Consequently, the Principal Member found that the appellant's application was filed out of time and on that basis the claim for breach of statutory warranties by the appellant should be dismissed. It also followed that by operation of s 48K(7) of the HB Act the Tribunal did not have jurisdiction to hear and determine the matter. 33In these circumstances and apart from the specific legal tests the appellant in the present matter was required to satisfy or address, the appellant was in a practical sense required to focus upon reasons why it could be concluded both that: (1)The builder/respondent attend the site to carry out residential building work under the contract on or after 14 November 2005; and (2)The work that the respondent carried out after that date was work other than work to remedy any defect that did not affect practical completion, as referred to in s 3B(3)(b). 34Unless there was material to support both of those propositions referred to in the preceding paragraph, establishing that there may have been a substantial miscarriage of justice would be difficult if not impossible. 35Having regard to the statutory context and the decision at first instance, the Appeal Panel now turns to consider each of the 3 grounds relied upon by the appellant as satisfying the requirements of cl 12(1) of Schedule 4 to the Act so that the Appeal Panel can exercise its discretion on whether or not to grant leave to appeal.

The decision of the Tribunal under appeal was not fair and equitable 36The appellant contended that the decision below was not fair and equitable within the meaning of clause 12(1)(a) of Schedule 4 to the Act on a number of bases some of which overlapped. These may be summarised from the material provided in the notice of appeal and the appellant's written and oral submissions as raising the following 3 issues: (1)The rolled kerb issue: Whether evidence concerning the rolled kerb work (sometimes referred to as the rolling kerb works) was not properly considered or fairly dealt with by the Tribunal below. That evidence was said to be significant because it established that the residential building work could not have been practically complete any earlier than 15 November 2005 and thus the claims were lodged within time. (2)The misleading submissions and evidence issue: Whether the Tribunal was misled by: (a)assertions of fact in the respondent's submissions which were not supported by the evidence and to which the appellant did not have the opportunity to respond; and (b)evidence given on the respondent's behalf which was false. (3)The adverse inference issue: Whether the Tribunal failed to draw or was diverted from drawing adverse inferences against the respondent's case in circumstances where the respondent failed to call, or properly explain the failure to call, evidence from the respondent's foreman who was identified as having personal knowledge of when the works were actually completed and the nature of any outstanding work as at 15 November 2005. 37It is appropriate to deal with each issue in turn notwithstanding that there is some overlap between them.

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.

The misleading submissions and evidence issue: 75The appellant's submissions concerning false, cute or misleading submissions have largely been dealt with above. It can be noted here that the appellant had the opportunity to make submissions on all relevant issues before the Tribunal at first instance and, if it had perceived that there were false or misleading submissions made by the respondent in its submissions in reply, it could have sought leave lead further evidence and to make further submissions addressing those matters. It did not do so. As a consequence and in all the circumstances, the Appeal Panel is of the view that the appellant has not established that the submissions made by the respondent were not open to be made on the material available and, in any event, the appellant had had the opportunity to make submissions on those matters. Accordingly, it should not be concluded that the decision was not fair or equitable on this basis. 76The appellant, however, made a further submission that the evidence given on behalf of the respondent was false, either deliberately or recklessly so. In [40] of its written submissions the appellant identified the false evidence as evidence given by Mr Raymond Draybi during the oral hearing that the builder/respondent "last attended site on 10 November 2005". At [44] of the written submissions, the appellant also submitted as follows concerning Mr Raymond Draybi's affidavit evidence, especially his affidavit of 7 February 2013: Raymond Draybi's evidence was designed to mislead the Tribunal, by creating the impression that a comprehensive review of the builder's file and documents could sustain an 'honest belief' that 'all works related to construction' were completed as of 10 November 2005, without making any reference to works that the builder must have performed after 15 November 2005 in order to be entitled to the refund of the $30,000 bond." 77Substantially similar submissions were put orally to the Panel. In particular, it was observed that in preparing his affidavit evidence, Mr Raymond Draybi had omitted to consider and refer to the invoices for painting done in relation to the strata development or to documentation concerning the rolled kerb work. On this basis his evidence was said to be founded on incomplete information and to be erroneous. 78The painting invoices were eventually exhibited to the affidavit of Mr Anthony Draybi of 5 April 2013 at [23] and the date of the last invoice was 5 November 2005 and could have been the subject of cross examination on 4 June 2013. 79The appellant did not discover that the rolled kerb work had not been done by 10 November 2005 until after the completion of the oral hearing on 4 June 2013. Nonetheless, this material was put before the Tribunal by the appellant without objection on the respondent's part and was the subject of submissions. Notwithstanding this, the appellant submitted on appeal that Mr Raymond Draybi's evidence, for example at [39] of his affidavit of 7 February 2005, was erroneous and false, even if not deliberately so. In this regard, the appellant's complaint was that the respondent did not, once the rolled kerb work had been raised as an issue, come forward, produce all documentation in relation to that work and explain how, when and by whom it was done. The appellant further complained that the Tribunal below did not recall the parties for an oral hearing to deal with that matter. The appellant conceded that it could have sought to have a further oral hearing and cross examine the respondent's witnesses in relation to the rolled kerb work but did not do so. 80Mr Raymond Draybi's oral evidence which was submitted by the appellant to have been false came about in the following way as described by the Tribunal in its reasons for decision at [22] and [23]: 22. When Mr Draybi was cross-examined about the render falling off the building, he said the rendering had been finished in May 2005. In relation to the painting of the building, Mr Draybi said that he had no recollection of when this work was completed. Mr Draybi indicated there would be an invoice for this work but it was not in the material submitted to the Tribunal. Mr Draybi said that he could not "off the top of his head' say when the painting was finished. In relation whether or not a certificate showing the balance due under the contract was issued under clause 8 of the contract (Exhibit 1 page 8) Mr Draybi gave evidence that no certificate was issued. 23. At the conclusion of cross examination, Mr Draybi was asked whether it was his recollection that the respondent was last on site on 10 November 2005 to which Mr Draybi replied "yes". 81Mr Draybi's affidavit evidence had apparently been prepared by his reviewing the documentation on the respondent's file relating to the building work on the strata development site and his forming the "honest belief and understanding" on the basis of the material relating to each trade, type of work, inspection report or certificate that certain works had been completed by certain times. Paragraphs 49 and 50 of Mr Draybi's affidavit of 7 February 2005 represented the culmination of such evidence and were as follows: 49. On 10 November 2005, Auburn Council issued their Final Inspection Report for the Premises. [A copy of the report was exhibited]. 50. It is my honest belief and understanding that all works relating to construction were completed as of this date. 82The appellant's submission that this oral and affidavit evidence as to when the builder/respondent last attended on site in order to carry out building work was false was based upon the proposition that there were "works that the builder must have performed after 15 November 2005 in order to be entitled to the refund of the $30,000 bond." - see [44] and [45] of the appellant's written submissions. 83A further significant element of the appellant's submissions on this topic was the proposition that because the respondent had sought to establish in evidence Mr Raymond Draybi's "honest belief and understanding" concerning when, among other things, the building work was completed based upon a review of the builder/respondent's documents, the respondent was required to produce and explain to the appellant and the Tribunal all documents relating to the rolled kerb work as well as documents relating to other trades. The appellant criticised the respondent for not coming forward and explaining the rolled kerb work but merely relying upon submissions to the effect that the rolled kerb work was not on the site and was thus not relevant residential building work and, further, that the work was minor and did not prevent the works as a whole from being reasonably capable of being used for their intended purpose. 84An allegation that a witness has given deliberately or recklessly false evidence is an extremely serious allegation. In considering whether such conduct had occurred the Appeal Panel took into account the nature of the proceedings before it and the nature of the subject matter of the proceedings and the gravity of the matters alleged. 85In the Appeal Panel's view, the appellant has not established that there were works that the builder must have performed after 15 November 2005 in order to have been entitled to the refund of the $30,000 bond. For the reasons already given in relation to the evidence relied upon by the appellant in this regard, we are not satisfied as to the following: (1)that the $30,000 bond referred to in the documents was in respect of the rolled kerb work and not other work such as a footpath; (2)that the $30,000 bond apparently refunded was refunded to the builder/respondent and not to some other person responsible for the footpath work; (3)the extent of rolled kerb work, if any, actually performed by the builder/respondent as opposed to work which was waived by the Council; (4)that any rolled kerb work which was performed was work under the relevant building contract and the extent to which work on the footpath, gratings, gulleys or widening was work under that contract; and (5)if it was work under the relevant building contract, that such work was other than "work to remedy any defect that does not affect practical completion" within the meaning of s 3B(3)(b) of the HB Act. 86Mr Draybi's evidence was consistent with the documentation and certification referred to in some detail in the Tribunal's reasons for decision. The information obtained after the oral hearing by the appellant from Auburn Council and one of its officers does not by itself establish that any relevant work, that is work other than remedying defects that did not affect practical completion, was done by the respondent after 10 November 2005. 87Furthermore, the respondent was entitled to conduct its case in the manner it saw fit. It chose not to put on further evidence concerning the rolled kerb work, choosing to address the additional documentary evidence adduced by the appellant by way of submissions. The appellant had the opportunity to have summonses issued to the builder/respondent and Auburn Council to obtain evidence and documents and to seek to have the oral hearing re-opened so that the issue of the rolled kerb work could be the subject of further oral evidence. It did not avail itself of these opportunities. The appellant has not established that the builder/respondent carried out after 10 November 2005 any relevant work, that is work other than remedying defects that did not affect practical completion. 88In the circumstances, the Appeal Panel does not accept that the evidence given by Mr Draybi should be found to have been deliberately or recklessly false. Moreover, the Panel is of the view that the material and arguments relied upon by the appellant in this regard do not establish that the Tribunal's decision below was not fair and equitable. 89The appellant drew attention to what it perceived to be an inherent disadvantage under which owners' corporations labour in disputes of this type. At [48] of its written submissions, it was stated: The Appeals Panel should recognise that in cases of this kind owners' corporations are at a particular disadvantage. It is rare that they will have any personal knowledge or documentation to adequately ascertain when their building became practically complete, whereas builders have their construction and administrative record. In our adversarial system builders are not required to volunteer admissions, but there should be consequences when they offer evidence and instruct legal representatives to make submissions which they know, or must reasonably be taken to know, are contrary to the truth." 90Whilst the Appeal Panel recognises that there may be situations where one party to litigation has an inherent advantage over another party because of access to information, documents or experts, it is important that parties make use of the tools available to them to prepare and present their cases. Under s 40 of the Consumer Trader and Tenancy Tribunal Act 2001 (NSW) (and now under s 48 of the Act), the appellant could have applied for a summons to be issued to the respondent, Auburn Council or any other person for the production of document or other things. In this way, all relevant documents and other material could have been obtained by the appellant prior to the hearing of the matter so that the appellant was properly informed and prepared. Under those same sections, a person can also be compelled to attend at a hearing and give oral evidence. If the appellant was unaware of the procedures available to it for obtaining documents and other evidence under provisions such as these, that was unfortunate but it does not mean that the decision of the Tribunal below was not fair or equitable for the purposes of cl 12(1)(a) of Schedule 4 to the Act.

The adverse inference issue 91The third issue raised by the appellant in support of its contention that the decision below was not fair and equitable related to the Tribunal's failure to draw an adverse inference against the respondent's case because the respondent did not call Mr Michael Diab, the respondent's foreman for the building work on the strata development. 92It was not in dispute that Mr Diab was Mr Anthony Draybi's nephew by marriage, the respondent's foreman on site including in November 2005 during the time when Auburn Council was carrying out inspections and a person who would have had personal knowledge of when the respondent last attended on site to carry out building work other than work to remedy any defect that did not affect practical completion. He was not called by the respondent to give evidence. 93At [31] of the reasons for decision the Tribunal recorded the following concerning the oral evidence given by Mr Anthony Draybi: Mr [A] Draybi gave evidence that Mr Diab was no longer working for the applicant [this appears to be a slip and the reference should be to the builder/respondent] and he had not seen him for some time. Mr [A] Draybi said that Mr Diab works for himself, and that he knows where he is and that Mr Diab is he is nephew but that Mr [A] Draybi had not seen him since August 2005. 94This record suggests that the appellant may have sought in cross examination to lay the groundwork for a submission that an inference should be drawn that the evidence that Mr Diab would give would not have helped the respondent's case - see Jones v Dunkel (1958) 101 CLR 298 at, for example, 321 (.8) per Windeyer J citing Wigmore, Evidence (3rd Ed 1940). The respondent apparently perceived that the appellant was seeking to make such a submission and took this matter up in its written submissions as recorded by the Tribunal below at [50] of the reasons for decision as follows: A final issue raised by the respondent is in connection with Mr Diab, the respondent's foreman on the project. The respondent says that the evidence of Mr Anthony Draybi explaining that Mr Diab had left the business and he had not been in contact with him for some time makes it inappropriate for the Tribunal to draw an adverse inference against the respondent. In this regard the respondent referred to the decision in ASIC v Australian Lending Centre Pty Ltd and Others [2012] FCA 43 (at [153]). The respondent also makes reference to Mr Draybi's demeanour in the witness box when giving evidence during re-examination that "suggested a level of discomfort on the part of Mr Draybi in discussing Mr Diab or Mr Draybi's current relationship with him". 95The appellant had the opportunity to respond to that submission in its written submission filed after the respondent's submissions - see [51] of the reasons for decision. 96The Tribunal at first instance did not specifically refer to whether or not it drew any inference concerning the failure to call Mr Diab. 97The inference which may be drawn against a party which fails to call a witness under the rule in Jones v Dunkel is to some extent a matter of common sense and experience. Even though the Tribunal is not bound by the rules of evidence, the Tribunal may draw such an inference where the circumstances of the case render it appropriate. In the present case, as the passage from Windeyer J's judgment referred to above makes clear, the inference that might have been drawn was that Mr Diab's evidence would not have helped the respondent's case. It could not be inferred from the failure to call Mr Diab that the respondent attended the site after 10 November 2005 to do work other than work to remedy any defect that did not affect practical completion, in the absence of other evidence that supported such a conclusion. The absence of a witness cannot be used to make up any deficiency in the evidence - Jones v Dunkel (1958) 101 CLR 298 at 312 (.6) per Menzies J. 98There was a considerable body of evidence before the Tribunal upon which it could rely to conclude that the respondent attended the site last on 10 November 2005 to do work other than work to remedy any defect that did not affect practical completion. This was referred to in detail by the Tribunal at [102] to [133] of the reasons for decision. There was little if any unequivocal evidence that the respondent attended the site after 10 November 2005 to do work other than remedying defects. The Tribunal weighed the evidence and considered the submissions made by the parties. The fact that there was no express reference to whether or not to draw any inference from the failure to call Mr Diab does not lead to the conclusion that the decision as a whole was not fair and equitable. 99The appellant's written submissions relevantly conclude at [55] with the statement that "That [the Tribunal being sensitive to family issues] would be understandable, but, with respect, it should not excuse the builder from explaining a for the failure to call crucial evidence from a vital witness." This suggests that the appellant was contending that because the respondent did not explain (to the appellant's satisfaction) why it did not call Mr Diab, the Appeal Panel should conclude that the Tribunal's decision was not fair and equitable or that some miscarriage of justice had occurred. If this is what the appellant was submitting that submission should be rejected. It was not incumbent upon the respondent to explain its failure to call evidence and a failure to do so would not render the Tribunal's decision not fair and equitable. If a party provides no explanation satisfactory to the Tribunal, it runs the risk of an adverse inference being drawn against its case. The absence of an explanation does not have the consequence that the decision is not fair and equitable. In any event, in the present case, the respondent did provide some explanation and relied upon authority as to why an adverse inference should not be drawn. The Tribunal referred to this explanatory evidence and to the respondent's submissions in its reasons. The material before the Tribunal provided ample support for its conclusions whether or not it was appropriate to rely upon inferences arising out of the failure to call a witness. 100In relation to this issue, the Appeal Panel can discern no basis in what occurred in relation to the failure to call Mr Diab or in the Tribunal's reasoning for concluding that the decision below was not fair and equitable.

Conclusion on whether the Decision was Not Fair and Equitable 101For all of these reasons the Appeal Panel concludes that the appellant has not established that the decision under appeal was not fair and equitable within cl 12(1)(a) of Schedule 4 to the Act. 102Even if the Panel were wrong in that conclusion, we are not satisfied that there was any substantial miscarriage of justice which the appellant may have suffered as a result of the matters raised under this ground which we have dealt with above. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel held t [76] that "a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." The Appeal Panel does not accept that, if the relevant circumstances relied on by the appellant had not occurred, that is, if the rolled kerb work evidence had been properly considered, no unsupported or false submissions had been made and the Tribunal had properly drawn any available inference from the failure to call Mr Diab, there would have been a significant possibility or a fairly open chance that the appellant would have achieved a different and more favourable result. This follows from the fact that the material relied upon to establish that the respondent attended on the site after 10 November 2005 to carry out work under the building contract was weak and from the fact that there was no convincing basis for concluding that any work that was so done by the respondent was not work to remedy a defect that did not affect practical completion (within s 3B(3)(b) of the HB Act). 103Accordingly, the appellant has not established that it may have suffered a substantial miscarriage of justice because the decision of the Tribunal below was not fair and equitable. Consequently, the Appeal Panel cannot grant leave to appeal against the decision of the Tribunal below on the basis of the ground referred to in cl 12(1)(a) of Schedule 4 to the Act.

The decision of the Tribunal under appeal was against the weight of the evidence 104The appellant contended that the decision below was against the weight of the evidence within the meaning of clause 12(1)(b) of Schedule 4 to the Act. This was put very much as an alternative submission. Indeed, in its written submissions the appellant at [15] merely said: To the extent that the circumstances relied upon by the Owners are more properly characterised under this ground [cl 12(1)(b) of Schedule 4 to the Act], the Owners rely on this subsection also. 105The Appeal Panel is of the view that there is no basis for concluding that the Tribunal's decision was against the weight of the evidence before the Tribunal. There was more than ample support in the material before the Tribunal for its conclusions. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel held at [77(2)]: The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 106The appellant did not seek to point to such a preponderance of evidence against the conclusion reached by the Tribunal below nor could the Appeal Panel discern such preponderance. 107It follows that the Appeal Panel cannot grant leave to appeal against the decision of the Tribunal below on the basis of the ground referred to in cl 12(1)(b) of Schedule 4 to the Act.

Significant new evidence has arisen which was not reasonably available at the time of the hearing 108The appellant also relied upon the ground in cl 12(1)(c) of Schedule 4 to the Act. Under cl 12(1)(c) the Appeal Panel may grant leave if it is satisfied that the appellant may have suffered a substantial miscarriage of justice because: significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 109In order to fall within this paragraph the appellant must be able to point to evidence which: (1)is significant; and (2)has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard. 110The new evidence upon which the appellant relies in this regard is not specifically identified in the written submissions but was referred to in oral submissions and was identified in the notice of appeal as follows: 1. The documents at pages 12 to 22 of the statutory declaration of Mr John Hadchiti dated 14 February 2014 - attached to this application. These documents were only made available by Auburn council on 12 February 2014, the Applicant was not aware of the matter contained in them until that date. 2. The new evidence raises further relevant questions, the Applicant has sought answers from Auburn Council, and would wish to make those answers available in the appeal. See paragraph 18 of the statutory declaration of Mr John Hadchiti dated 14 February 2014 - attached to this application. 111Further information on the nature of the new evidence referred to in paragraph 2 was given in Mr Hadchiti's affidavit of 14 April 2014, especially in paragraphs 2 and 3 relating to Mr Hadchiti's conversation with Mr Wojceik (or Wojick, there was some confusion as to this gentleman's name) and paragraphs 4 and 5 which relate to certain correspondence obtained from Auburn Council and possibly elsewhere concerning the fire safety of the strata development. 112As to the 11 pages referred to in paragraph 1, the appellant only relied upon the first page which was an email from a Mr Tsaprounis from Auburn Council to another officer of the council Mr Stamatakos dated 24 November 2005. The body of the email is as follows: In relation to condition 26 (provision of roll over kerb on both sides of Mimulus lane to allow for two way traffic) for the above site [the site in Amy Street, Regents Park is identified in the subject line of the email], please be advised as follows; The purpose of the condition was to provide a 5.5m carriageway to allow for two vehicles to pass or to allow for a truck/car to park and allow for a further vehicle to pass. Following a site visit and discussion in which yourself, Michael Wojick and myself where present with the builder, it was conceded that only the northern side of the roadway needed to be extended (ie provided with roll over kerb or similar treatment) to achieve the desired 5.5m width as requested. As such the builder was informed that constructing a roll over kerb on both sides of the roadway was no longer required. The builder has indicated that this work is to be undertaken. In summary, the intent of the condition has therefore been satisfied. 113The statement that the "builder has indicated that this work is to be undertaken" provides a basis for inferring that the builder intended to undertake or at least said it would undertake some rolled kerb work in Minimus or Mimulus Lane after a meeting with officers of Auburn Council. Without the support of some further unequivocal evidence that the builder (or someone on behalf of the builder) actually carried out that work, the statement in the email would not be a sufficient basis to conclude that the builder actually carried out that work. Further, the email does not establish when that conversation took place except that it must have been before 24 November 2005. Nor does the email establish that the rolled kerb work was required for practical completion of the works under the building contract in respect of the strata development and was not work to remedy any defect that did not affect practical completion (for the purposes of s 3B(3)(b) of the HB Act). In the circumstances, the Appeal Panel is not satisfied that the evidence is significant in the sense that if it had been before the Tribunal at first instance there was a "significant possibility" that a different, more favourable result would have been achieved by the appellant - see Collins v Urban at [74] and [75]. 114Furthermore, although the appellant may not have been aware of the email until 2014, it does not follow from that fact that the evidence was not reasonably available at the time the proceedings below were being heard. As a party, the appellant was entitled to apply for a summons to be issued under s 40 of the CTTT Act to Auburn Council, to the builder/respondent and to any other relevant person to obtain documents relating to the completion of work on or near the site of the strata development. Given that the email was dated 24 November 2005 and was made available to the appellant in 2014, the Appeal Panel concludes that it would have been available to the appellant if it had been sought by summons issued out of the CTTT at any time prior to the hearing of the proceedings. Issuing a summons is not an unreasonable step to require a party to take to obtain documents that may be relevant to its proceedings in the Tribunal. Thus, it should be concluded that this evidence was reasonably available at the time of the hearing. 115Accordingly, the Auburn Council email of 24 November 2005 was not significant new evidence falling within cl 12(1)(c). 116The remaining 10 pages comprised a letter from a project planner, Mr Gosling, to A and A Developments Pty Ltd dated 18 March 2002 to a Mr Khattar, a sketch of the development headed "Colour Schedule" and some photographs in and around the subject site apparently taken before any work was undertaken. Mr Hadchiti's evidence was that these were all obtained from Auburn Council in 2014. The Appeal Panel is of the view that these 10 pages are not "significant" in the sense described above. No contrary submission was put on the appellant's behalf. Furthermore, they all appear to have been brought into existence well before the hearing of the matter and the Panel infers that they would have been produced by the Council in response to an appropriate summons if one had been issued prior to the hearing. For these reasons the Panel concludes that these remaining 10 pages were also not significant new evidence falling within cl 12(1)(c). 117As to the information from Auburn Council referred to in paragraph 2 of the appellant's response in its notice of appeal and the further details of the evidence provided in Mr Hadchiti's affidavit of 14 April 2014 paragraphs 2, 3 and 4, it is convenient to deal with the information from Mr Wojceik separately from the fire safety documents. 118Paragraphs 2 and 3 of Mr Hadchiti's affidavit concerning Mr Wojceik were as follows: 2. On 4 April 2013, I meet with Mr Michael Wojceik (an officer of Auburn Council) on site, at 2 Amy Street, Regents Park. I should Mr Wojceik the email dated 24 November 2005, which is annexure "JH 4" to my statutory declaration. Mr Wojceik said words to the effect of: "Yes, I was at the meeting reffered to in the email, together with Geroge Tsapronis, and Michael Diab on behalf of the builder. Tony Draybi was not there. I did not see Tony on the job towards the end." I took Michael around to the Minimus Lane entrance, and asked him a question in words to the following effect: "What work was still outstanding at the time of your meeting?" He answered in words to the effect off[sic]: "Well this was not here." He indicated the metal stormwater gate which crosses the entrance, and is shown at 'JH 3' to my statutory declaration. He continued: "All of the works required to take stormwater from Minimus Lane, including these two grated gulleys,.[sic] Because of the overflows into the property there and they had to be connectionsed to both the existing council stormwater drains, and up to ithe the on-site detention tank in the car park basement. front of the property, to prevent excess water going into the basement." He pointed out two gulleys constructed into the kerbs either side of Minimus Lane with precast lintels. He continued: "The kerbs at the entrance to the site had not been rounded to widen the entrance, and that "sleeping" ramp to slow down traffic was not in." I asked him: "Who did the work?" He said: "Not council. This was all done by Draybi." I said: "Would you give our solicitor a statement about the works which were outstanding at the time of your meeting?" He said: "I was not responsible for these works, that was George Tsapronis. My work was out the front where there was a lot of paving to be done." I said: "Nevertheless, it would be very helpful if you could give evidence as to what you saw when you visited the site back on 24 November 2005." [The foundation for the assumption that the meeting occurred on 24 November 2005 was not apparent to the Appeal Panel] He said: "I'm not the boss. I'm not authorised to give a statement. I'm just telling you what I know." 3. Annexed hereto and marked "A" is a picture, downloaded from Google Maps, of the development. The area that I inspected with Mr Wojceik is circled. 119The Appeal Panel accepts that this evidence may be significant if there were additional material to establish that the works referred to by Mr Wojceik were not work to remedy any defect that did not affect practical completion (for the purposes of s 3B(3)(b) of the HB Act). The Appeal Panel was not taken to any material which suggested that this was the case. Nonetheless, the more substantial problem for the appellant is that this evidence was reasonably available at the time of the hearing. There was no reason why the appellant could not have obtained the documents from Auburn Council or the builder by summons and then contacted Mr Wojceik prior to the hearing, as it had been able to do in 2014. If Mr Wojceik felt unable to give evidence voluntarily, a summons could have been issued for him to attend and give evidence before the Tribunal during 2013. 120Whilst it is unfortunate that the appellant did not avail itself of the procedures available to obtain documents and other evidence, the Appeal Panel cannot conclude that any of this evidence falls within cl 12(1)(c). 121The evidence referred to in paragraphs 4 and 5 of Mr Hadchiti's affidavit was: (1)A document dated 11 September 2007 from New South Wales Fire Brigades stamped as received by Auburn Council on 19 September 2007 headed "Complaint/Enquiry" in respect of the strata development together which the chain of emails (of February and March 2014) between Auburn Council and representatives of the appellant as a result of which the September 2007 document was provided to the appellant. (2)A letter dated 31 August 2006 from Civil Fire Design Pty Ltd (Civil Fire) to the respondent concerning the strata development noting that during their annual fire safety inspection carried out during August 2006 at the development Civil Fire "identified defects which require clarification" and listing those defects and setting out Civil Fire's fees. No information was given as to how or when the appellant obtained this letter. 122The September 2007 complaint/enquiry records that a certain Fire Safety Officer received a "Complaint/Enquiry: Sprinkler system not being monitored" in respect of the strata development and it was referred to Auburn Council "for its determination" as "Council are the regulatory authority". This document does not provide any basis for inferring that the respondent attended the site later than 10 November 2005 to carry out work other than work to remedy any defect that did not affect practical completion (for the purposes of s 3B(3)(b) of the HB Act). No other relevance to the matters in issue in these proceedings is apparent. On this basis the Appeal Panel concludes that this evidence is not significant. Furthermore, given that it was obtained from Auburn Council by means of an application under the Government Information (Public Access) Act 2009 (NSW) in 2014, the Appeal Panel infers that it could reasonably have been obtained by summons issued under s 40 of the CTTT Act prior to the hearing at first instance in 2013. Accordingly, it was not significant new evidence within the meaning of cl 12(1)(c) of Schedule 4 to the Act. 123Similarly, the Civil Fire letter of 31 August 2006 does not provide any basis for inferring that the respondent attended the site later than 10 November 2005 to carry out work other than work to remedy any defect that did not affect practical completion (for the purposes of s 3B(3)(b) of the HB Act). The letter does not appear to have any other relevance to the matters which were in issue in these proceedings. Thus, the Appeal Panel concludes that this evidence is not significant. Moreover, there was no evidence as to when or how the appellant obtained the letter. Thus, the appellant has not established that it was not reasonably available at the time the proceedings under appeal were being dealt with. Given its date and the fact that it has been obtained at some point of time by the appellant's representative, it is likely that it could have been obtained by summons or request prior to the hearing. The appellant has not established that it is significant new evidence that falls within cl 12(1)(c). 124For these reasons, the Appeal Panel is not satisfied that any of the material put forward by the appellant referred to above constitutes significant new evidence for the purposes cl 12(1)(c) of Schedule 4 to the Act. Accordingly, the Appeal Panel cannot grant leave to appeal relying on cl 12(1)(c). 125Even if we are wrong in reaching that conclusion, the Panel is not satisfied that if that material had been put before the Tribunal at first instance,there would have been a significant possibility or a fairly open chance that the appellant would have achieved a different and more favourable result. This is largely because even if it were established that the builder did attend at the site after 10 November 2005 the material does not establish that it was to carry out work under the relevant building contract other than work to remedy any defect that did not affect practical completion (for the purposes of s 3B(3)(b) of the HB Act). Consequently, the appellant has not established that it may have suffered a substantial miscarriage of justice because of the ground in cl 12(1)(c).

Leave to Appeal Refused 126As the none of the grounds specified in cl 12(1)(a), (b) or (c) has been made out by the appellant, the Appeal Panel cannot be satisfied that the appellant may have suffered a substantial miscarriage of justice because of one or more of those grounds. Furthermore, even if the circumstances had established one or more of the grounds referred to in cl 12(1)(a), (b) or (c), the Panel was not satisfied that the appellants may have suffered a substantial miscarriage of justice as a result, for the reasons given above. 127Consequently, leave to appeal must be refused.

Additional Matters 128The ground of appeal which the appellant had identified in its notice of appeal was as follows: At paragraph 123 of the 'Reasons for Decision' the Tribunal erred in finding that certain outstanding kerb works were non-essential to completion. As a result the Tribunal found the works had been completed on a date which placed the Applicant's claim outside the relevant limitation period, causing the Applicant's claim to be dismissed. In arriving at those conclusions: 1. The Tribunal misconstrued the meaning and effect of the documentary evidence with respect to rolling kerb work. 2. The Tribunal placed a construction on those documents that neither party had contended for, and which the parties did not have an opportunity to respond to. 3. The Tribunal was misled by factual assertions in the Respondent's written submissions which were not supported by any evidence. 4. The Tribunal failed to make an adverse inference from the Respondent's failure to call, or to explain the failure to call, evidence from the Respondent's foreman who was the only person identified as having personal knowledge of when works were performed and the nature of any outstanding works as at 15 November 2005. 5. The Tribunal did not have the benefit of new evidence which is now available and demonstrates the true construction of the documents referred to in points 1 to 4 above. 129In dealing with this matter, the Appeal Panel was initially concerned that the terms in which the ground of appeal were expressed might be thought to suggest that the appellant was seeking to raise a question of law and that leave to appeal would not have been necessary at least in respect of such a question. After receiving the appellant's written submission and on a fuller understanding of the way in which the appellant put its case, the Appeal Panel was satisfied that the appellant was correct to seek leave to appeal. 130Even if the Appeal Panel were wrong in reaching that conclusion, the issues sought to be raised by the ground of appeal have been dealt with in substance in the reasons given above. In these circumstances, the Appeal Panel is of the view that even if the matter had been dealt with as an appeal and not as an application for leave to appeal the appeal should have been dismissed for the reasons already given.

Orders 131As the Appeal Panel is not satisfied that the appellant may have suffered a miscarriage of justice because of any of the grounds set out in cl 12(1)(a), (b) or (c) of Schedule 4 to the Act, the application for leave to appeal must be dismissed. 132To the extent that the filing of the notice of appeal constituted an appeal in addition to an application for leave to appeal, any such appeal should also be dismissed. 133In relation to costs, both parties have submitted that the other party should pay their costs of this appeal. Given that the respondent has been successful in this application for leave to appeal, the Appeal Panel proposes to order that the appellant pay the respondent's costs of this application and to leave the order for costs made below undisturbed. Since there may be, however, a potential question as to the nature and exercise of the Appeal Panel's power to award costs in an appeal from a decision of the Consumer and Commercial Division, we propose to grant liberty to the parties, if they wish to do so, to apply within 14 days of the date of these orders to have the costs order reconsidered by the Presiding Member of the Panel. 134Consequently, the orders of the Appeal Panel are: (1)The application for leave to appeal is dismissed. (2)To the extent necessary, the appeal is dismissed. (3)The appellant is to pay the respondent's costs of the application for leave to appeal. (4)The parties have liberty, if they wish to do so, to apply within 14 days of the date of these orders to have the costs order reconsidered by the Presiding Member of the Panel. 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. Principal 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: 26 June 2014