Ray Vella Designer Homes Pty Ltd v Watling

The procedural history of the appeal

1. On 20 July 2021, the builder lodged its Notice of Appeal.
2. On 18 August 2021, the Appeal Panel made orders for the preparation of the appeal for hearing, including orders that: 1. the builder provide a typed copy of the oral reasons of the Tribunal; 2. each of the builder and the homeowner lodge with the Appeal Panel and serve on the other all of the evidence provided to the Tribunal on which they intended to rely for the purposes of the appeal; and 3. each of the builder and the homeowner lodge with the Appeal Panel and serve on the other the sound reporting or transcript of the hearing before the Tribunal if what happened at the hearing was to be relied upon, together with a typed copy of the relevant parts.
3. The materials provided to the Appeal Panel by the builder included a transcript of hearing on 15 July 2021, which included most of the oral reasons of the Tribunal. However, the builder did not provide a transcript of the hearing on 13 May 2021 (when the evidence was taken) or a sound recording of either day of the hearing.
4. The materials provided to the Appeal Panel by the homeowner include a more complete transcript of the hearing on 15 July 2021, together with what appears to be a record of the hearing on 13 May 2021. However, that record is not in the form of a transcript. Whilst it appears to reproduce verbatim some of the early passages of the hearing most of the reproduction is in a summary form and it is replete with ellipses.

The appeal

1. As this is an appeal from the Consumer and Commercial Division of the Tribunal it is an internal appeal. Internal appeals may be made as of right on a question of law, and otherwise with the leave of the Appeal Panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act").
2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 to the NCAT Act. 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).
3. In Collins v Urban [2014] NSWCATAP 17 ("Collins"), an Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered 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."
4. If the builder were to establish that it may have suffered a substantial miscarriage of justice in the sense explained above, then the Appeal Panel would have a discretion whether to grant leave under s 80(2) of the NCAT Act. In Collins, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: "(a) issues of principle; or (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; or (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."
5. Where, as in the present case, an appellant is not legally represented it is appropriate for the Appeal Panel to review the stated grounds of appeal, the material provided, and the Decision to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: Cominos v Di Rico [2016] NSWCATAP 5 at [13]. However, it is not the role of the Appeal Panel to draft grounds of appeal for the appellant not raised, and then resolve them: ZNX v ZNY [2020] NSWCATAP 41 at [29], citing SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [30].

Appeal as of right

1. Having reviewed the stated grounds of appeal, the material provided and the Decision the Appeal Panel does not consider that the builder raises any questions of law and as such does not have an appeal as of right. The builder requires the leave of the Appeal Panel to appeal.

Leave to appeal

1. As noted above at [11], before the Appeal Panel is able to give leave to appeal it must be satisfied that the builder may have suffered a substantial miscarriage of justice because: 1. the Decision was not fair and equitable, or 2. the Decision was against the weight of evidence, or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

Was the Decision was not fair and equitable?

1. The builder's Notice of Appeal sets out several bases on which the builder contends that the Decision was not fair and equitable. These are discussed in turn below.

Inadequate opportunity to provide evidence that the work had been properly completed

1. The Notice of Appeal states that: "The process was not equitable because I did not have an opportunity to be able to provide evidence that the work completed by me was properly completed. It was not possible for me to have an independent assessment of my work on her property but in contrast to this, [the homeowner] was able to use evidence from an assessment done by a third party which was not questioned or verified. I did request an assessment by a Fair Trading inspector which was standard practice until recently but this was not done."
2. As noted above at [2]-[4], the application commencing the proceeding was lodged with the Tribunal on 26 January 2021 and the hearing took place over two days on 13 May 2021 and 15 July 2021. A chronology of events provided to the Appeal Panel by the builder records that in May 2021 the homeowner paid B&G Enterprises for work done in replacing the barge boards. The homeowner indicated to the Appeal Panel that B&G Enterprises did that work at about that time.
3. From the above events, the prima facie position is that the builder had a period of approximately three months in which to arrange for an independent assessment of the work that it had done. On any measure, this period provided a more than adequate opportunity for the builder to arrange an independent assessment.
4. The builder has not provided any evidence to the Appeal Panel capable of displacing this prima facie position. For example, there is no evidence of requests made for an independent assessment (including when and to whom they were made) or why such an assessment was unable to be carried out in the time available. There is also no evidence before the Appeal Panel that the builder raised with the Tribunal at any time a concern that it wished to have an independent assessment undertaken but was experiencing difficulty in having this done.
5. In these circumstances, the Appeal Panel is not satisfied that the builder did not have an adequate opportunity to arrange for an independent inspection.

Mr Hunter's evidence

1. As noted above at [18], the Notice of Appeal included a statement that: "… in contrast to this, [the homeowner] was able to use evidence from an assessment done by a third party which was not questioned or verified"
2. The Appeal Panel understands this to be a reference to a statement by Mr Hunter, an experienced plumber, as to his observations when he inspected the work done by the builder. That statement was in evidence before the Tribunal.
3. The materials provided to the Appeal Panel do not indicate the circumstances in which this evidence was received, including whether Mr Hunter gave oral evidence and was available for cross examination. Nor do those materials indicate whether Mr Vella sought an opportunity to question Mr Hunter.
4. Further, the transcript of the oral reasons prepared the homeowner includes a record that the Tribunal said: Finally while reliance was placed Mr Hunter's report, that was limited to his observations of where the barge board adjoined other surfaces, that is bricks and cladding, (that is shiplap) it wasn't relied upon by the Tribunal as an expert report as to the adequacy of the barge boards.
5. This passage suggests that the Tribunal's reliance upon Mr Hunter's report was limited to his observations.
6. Taking all of the above into account, the Appeal Panel is not satisfied that there are any circumstances surrounding the Tribunal's reliance upon the evidence of Mr Hunter which are capable of having the effect that the Decision was not fair and equitable.

No written reasons

1. The Notice of Appeal includes a statement that the Decision was not fair and equitable because: The Member did not provide his reasons for his decision in writing, making it more difficult for me to address his decision
2. The delivery of reasons orally cannot render the Decision not fair and equitable. The content of the Decision is the same whether it is delivered orally or in writing. Difficulties in addressing the Decision arising out of the delivery of oral reasons are difficulties at the appeal stage and are not relevant to the question whether the Decision was fair and equitable. In any event, such difficulties are readily overcome by the acquisition of the sound recording and the creation of a transcript from that recording which, as noted above at [8]-[9], was a course followed at least to some extent by both the homeowner and the builder.
3. For all of the above reasons the Appeal Panel is not satisfied that the builder may have suffered a substantial miscarriage of justice because the Decision was not fair and equitable.

Was the Decision against the weight of evidence?

1. For a decision of the Tribunal to be against the weight of evidence the evidence in its totality must preponderate so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach: see Collins at [77].
2. To make an assessment whether a conclusion reached by the Tribunal is one that a reasonable Tribunal member could not reach because the evidence in its totality preponderates so strongly against that conclusion, it is necessary to consider the totality of the evidence that was before the Tribunal. However, as noted above, the Appeal Panel does not have before it the totality of the evidence that was before the Tribunal and in particular does not have a transcript of the oral evidence that was given to the Tribunal by Mr Vella or the homeowner.
3. The builder contended that the Tribunal failed to give adequate weight to particular items of evidence. These are considered in turn below

The homeowner's evidence that she and the builder had agreed that her son and not the builder would do the cement bedding and pointing on the roof tiles

1. The Notice of Appeal includes in several places a statement to the effect that the Tribunal did not give adequate weight to evidence of an agreement between the builder and the homeowner that the homeowner's son would carry out cement bedding and pointing on the roof tiles. The builder also asserts that if this had been done, then there would have been no water ingress.
2. The homeowner appeared to accept that there was an agreement that her son would do the cement bedding and pointing on the roof tiles.
3. However, the Appeal Panel does not have before it evidence of the terms of the agreement that was reached. Critically, there is no evidence that it was part of the agreement that the builder could leave the premises in a state which would allow water ingress unless and until the bedding and pointing had been done. Nor is there evidence that the agreement was that the homeowner would attend to the bedding and pointing shortly after the builder's work.
4. The Appeal Panel notes that within the builder's submissions (but not in its Notice of Appeal) are contentions that the Tribunal failed to give adequate weight to: 1. evidence from Mr Vella and the homeowner that the homeowner would have the cement bedding and flexible pointing done on the roof tiles directly after his work had been finished; and 2. Mr Vella's evidence that bedding and flexible pointing is essential to waterproof the roof and is the final stage of the work.
5. Again, the Appeal Panel does not have before it the evidence referred to by the builder, nor is it in a position to assess that evidence as part of the totality of the evidence before the Tribunal.

Insurance moneys

1. The builder's Notice of Appeal states that the Tribunal gave inadequate weight to "evidence that [the homeowner] tendered a quote and a receipt for payment of work done by a third party, arguably to repair the damage done by [the builder's] work, but at the same time acknowledged that she had received insurance money for the same repair work".
2. The homeowner strenuously denied any suggestion that she had made a claim for which she had already been compensated.
3. This point was not developed by the builder in his written or oral submissions and it need not be considered further.

Standard Practice Information that supports the accurate nature of the work completed by the builder and relieves the builder of the responsibility to alter the structure of the boards

1. The builder submitted that the Tribunal should have given greater weight to evidence provided by him as to "Standard Practice Information".
2. The only material which fits this description and which appears to have been before the Tribunal are two diagrams concerning the junction between a barge board and a roof. These diagrams of themselves are insufficient to establish, as the builder appears to contend, that the work undertaken by the builder was "accurate" or that the builder had no responsibility to alter the structure of the boards.
3. The builder's submissions on appeal reproduce those diagrams but also contain evidence concerning those diagrams, some of which the builder says was before the Tribunal and some of which he says was not. The Appeal Panel is not in a position to determine what evidence from Mr Vella on this issue was before the Tribunal. Nor does it have the totality of the evidence.

The circumstances of the delay in the builder returning to the homeowner's premises

1. The Notice of Appeal states: The member did not accurately interpret the timeline of events, because he stated that he based his decision, at least in part, on my delay in returning to the site to attend to [the homeowner's] request. However, she had asked me to return to attend to some loose bricks on the other side of the house which had nothing to do with the water damage on which she is making her claim.
2. On an interpretation of the Notice of Appeal most favourable to the builder this may be treated as a contention that the Tribunal's conclusions concerning the delay in the builder returning to the homeowner's premises (as to which see [5 (4)-(8)] above) was against the weight of evidence. However, again the Appeal Panel does not have before it Mr Vella's evidence or the homeowner's evidence and is unable to assess whether the conclusion is against the weight of evidence.

Miscellaneous matters

1. The builder in its submissions (but not its Notice of Appeal) contended that the Tribunal: 1. gave inadequate weight to Mr Vella's evidence that: 1. he did not tell the homeowner that boards of the requisite width were unavailable and that he told the homeowner that boards with the same hewn finish were unavailable; 2. the regular practice of roof tilers is to make the batten and barge board equal in height by either packing or trimming the batten to match the top of the barge board; 1. gave excessive weight to a quote from B&G Enterprises in circumstances where the amount quoted was exorbitant, where the quote is not evidence of the work done and the quote includes work additional to the replacement of the barge boards.
2. The Appeal Panel is unable to assess whether any conclusion of the Tribunal was against the weight of evidence because of the matters raised in the previous paragraph in circumstances where the evidence necessary to make that assessment has not been provided to the Appeal Panel.
3. For all the above reasons the Appeal Panel is not satisfied that the builder may have suffered a substantial miscarriage of justice because the Decision was against the weight of evidence.

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

1. The builder sought to rely upon new evidence in the form of: 1. photographs that Mr Vella took of some barge boards which he says he removed from the homeowner's premises and placed onto his waste wood pile and which he found after a search of that pile subsequent to the 15 July 2021 hearing. The photographs show Mr Vella with a measuring tape which records that the barge boards in the photograph are 238 mm wide; 2. a printout of a spreadsheet generated using estimating software which was created by Mr Vella in anticipation of his work on the homeowner's premises and which shows an allowance for the purchase of fascia boards of 230 mm width; and 3. a receipt for the purchase of such boards.
2. Before the Appeal Panel can admit new evidence it must be satisfied that the evidence was not reasonably available at the time of the hearing. Whether evidence was "not reasonably available" at the time of the hearing is not considered by reference to any subjective explanation from the party seeking leave to rely on it but by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained it: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23].
3. The Appeal Panel does not accept that the photographic evidence was not reasonably available at the time of the hearing. Assuming the correctness of the builder's submission the barge boards in the photographs had been removed from the homeowners premises, placed on Mr Vella's waste wood pile and found on that pile after a search by Mr Vella at a time subsequent to the hearing, it follows that those barge boards were reasonably available and photographic evidence of them could have been provided to the Tribunal.
4. Again assuming the correctness of the builder's submissions, the spreadsheet and the receipt each existed prior to the 14 May 2021 hearing and the Appeal Panel is not satisfied that they were not reasonably available at the hearing.
5. Thus, the Appeal Panel is not satisfied that any of the new evidence upon which the builder seeks to rely was not reasonably available at the hearing. It follows that it is unnecessary to consider the significance of that evidence.

Conclusion

1. For the reasons set out above, the Tribunal is not satisfied that: 1. any question of law arises; or 2. that the builder may have suffered a substantial miscarriage of justice because of one or more of the matters set out in cl 12 (1) (a) to (c) of Sch 4 to the NCAT Act. It follows that the discretion to grant leave to appeal has not been enlivened and leave to appeal must be refused.

Orders

1. The Orders of the Appel Panel are: 1. Leave to appeal is refused 2. The appeal is otherwise dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 October 2021