Ray Vella Designer Homes Pty Ltd v Watling

Ray Vella Designer Homes Pty Ltd v Watling - [2021] NSWCATAP 324 - NSWCATAP 2021 case summary — Zoe

The Decision

The reasoning in the Decision may be summarised as follows: 1. the homeowner accepted the builder's quote to replace barge boards on her house; 2. the builder replaced the barge boards and the homeowner paid the builder on 23 July 2020; 3. on 12 and 27 November 2020, the homeowner contacted the builder with respect to the work done; 4. there was amongst other things water ingress during a wet weather event; 5. the builder did not attend to remediate the work; 6. on 18 January 2021, the builder suggested to the homeowner that a roofer attend to bed and point the roof edge and that the builder attend to any bricks that were loose as a result of the replacement of the barge boards; 7. the homeowner rejected this offer because she believed that the cause of the water ingress was the width of the barge boards; 8. because of the builder's delay, the homeowner had the barge boards replaced by B&G Enterprises, at a cost of $3774.90; 9. in order to install the barge boards in a manner which ensured that they carried out their intended purpose of waterproofing between the wall or cladding and the roof, the exercise of due care and skill required installation in a manner which: 1. did not expose areas above the rake of the brickwork and which abutted the cladding notwithstanding that these may have been exposed or abutting the adjacent surface prior to the builder performing its work; 2. did not reinstate a barge board in a way which repeated existing deficiencies or faults; 1. on the basis of photographs labelled 5B, 6, 9A and 10 and the observations made by Mr Hunter the Tribunal was satisfied that the barge boards installed by the builder were not of sufficient width to weatherproof the homeowner's premises; 2. thus, the work was done in breach of the warranty in s 60 of the Australian Consumer Law; 3. this work was the cause of the water ingress; and 4. replacement of the barge boards was required and the homeowner suffered loss of $3774.90 in having that replacement work done.

[5]

The appeal

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").
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).
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."
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."
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].

[9]

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

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."
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.
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.
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.
In these circumstances, the Appeal Panel is not satisfied that the builder did not have an adequate opportunity to arrange for an independent inspection.

[18]

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

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.
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].
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.
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.
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.

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (5)