The builder contended that the Tribunal failed to determine whether he was entitled to the value of materials, being a pergola kit, concrete sleepers and concreate sleeper posts, and a skylight, which he had left at the property.
[2]
Consideration
When we asked the builder to identify where in the 2 November 2022 transcript this issue had been raised, the builder conceded that he had not raised this issue at the hearing.
As the builder had not raised for determination at the hearing on 2 November 2022 the issue of whether he was entitled to the value of materials which he had left at the property, we reject this ground of appeal that there was a constructive failure to exercise jurisdiction by the Tribunal.
[3]
Issue 3: whether there was a failure to afford procedural fairness
[4]
Introduction
The builder contended that the Tribunal failed to afford procedural fairness by not permitting him to present evidence which he had provided to the Tribunal and the Tribunal prejudged the issue of whether the owners were entitled to recover $20,000.00.
[5]
Consideration
When we asked the builder to identify where in the 2 November 2022 transcript the Tribunal had not permitted him from present evidence which he had provided to the Tribunal, the builder conceded that the transcript did not record any such refusal.
When we asked the builder to identify where in the 2 November 2022 transcript the Tribunal had prejudged the issue of whether the owners were entitled to recover $20,000.00, the builder referred to a passage which should be reasonably understood as the Tribunal clarifying the quantum claimed by the owners.
As the builder did not establish that he was not permitted from presenting evidence which he had provided to the Tribunal and the Tribunal had prejudged the issue of whether the owners were entitled to recover $20,000.00, we reject this ground of appeal that there was a failure to afford procedural fairness by the Tribunal.
[6]
Issue 4: whether leave to appeal should be granted to the builder and if so whether the appeal should be allowed
[7]
Introduction
The contentions of the builder in section 6 of the notice of the notice of appeal substantially replicate the contentions in respect of issue 3 and do not address the question of whether the Tribunal decision was against the weight of evidence in the manner explained in Collins at [76] and [77]. At the hearing of the appeal the builder contended that the following findings in the Tribunal Decision were against the weight of evidence:
1. that the building work was defective;
2. that the loss of the owners by reason by any defective building work was $20,000.00.
[8]
Whether the finding that the building work was defective was against the weight of evidence
The 2 November 2022 transcript records the following matters:
1. the owners relied on the three reports dated 8 December 2021, 8 February 2022 and 4 April 2022 of Dylan Chresby (Mr Chresby), a civil and structural engineer;
2. the builder relied on the report dated 13 July 2022 of Gavin Swain (Mr Swain), a building consultant;
3. Mr Chresby and Mr Swain prepared a joint expert report dated 10 October 2022 (the joint expert report) in which in relation to 12 items they agree as to four (nos 1 to 4) and disagreed as to eight (nos 5 to 12);
4. Mr Chresby gave oral extensive evidence in chief;
5. the builder cross-examined Mr Chresby, asked questions as to whether there was evidence that the concrete slab for the shed was cracked, but did not challenge his opinions that the building work was defective;
6. Mr Swain did not give any oral evidence;
7. the Tribunal gave the following reasons for its finding that the building work was defective:
"The applicants have established firstly, the payments I've referred to the builder and the bringing about a decrease between the parties for the works to be carried out.
During the course of the building works the owners raised a number of concerns with the ruler as to the quality of the work they perceived as having been completed at the premises at the property. Those concerns included that the landscaping in turf at the property were not level, the concrete stage store was not level, was, of instance, sufficient depth, and was generally poor workmanship which has since been demolished by the builder, but not replaced, retaining all posts which were not level or plum, and the work area has not been adequately cleaned or protected. The installation of a pergola resulted in tiles and roots of property being removed, existing property being removed, that there's been excess dirt and rock left on the property, damage to the fence and retaining water at the property, that the goal of building material has been left on the property and not protected from the weather and have deteriorated.
There had been the evidence showed us that there was much correspondence between the parties by text messages and email exchanges to have the works rectified as the works would proceed and also significantly, that the incomplete works were exposed the existing premises to water ingress through the storms, causing damage to the ceiling of the property.
The relationship between the homeowners and the builder deteriorated to the point where the homeowners terminated the agreement on the 3 February 2022 as the building works had not progressed and in their view were defective.
The proof of defective building works before the Tribunal is usually at its highest if an expert gives evidence and that expert has agreed to be bound by the expert witness code of conduct of the tribunal.
The applicant homeowners rely on a report or reports as produced in evidence of Aegis, a civil and structural engineering [firm] under your ownership of Mr Chresby who the Tribunal is satisfied is a highly qualified, experienced civil and structural engineer and his report the defective building works that were carried out by the builder.
The builder relies on a building report from Mr. [Swain].
The parties prepared a joint export report dated the 10th [October 2022,] the builder's expert being Mr Swain. As I commented during at the end of the evidence Mr Swain's report was included in the bundle of documents [tendered] by the builder. However, his report was crafted more in the form of an investigation rather than an expert duly report. Nevertheless, we do have the [five] opinions of experts before the [Tribunal] and where the opinion of Mr Chresby is contested by Mr Swain, I'm making a finding that I prefer Mr Chresby's evidence as he has been to the site at least three times he has progressively seen the state of the site.
I'm satisfied that he has significantly high standard of qualifications and makes his findings based on the structural adequacy of the items that have been built. As he observed it's uncontested that the builder did demolish a slab at the request of the homeowners because the homeowners were not satisfied that the slab had been completed in accordance with all due care and skill as required under the Home Building Act. That the debris can be spoiled from that. Demolition remained on site and has been [observed] by Mr Chresby.
It's Mr Chresby's opinion that the builder failed to complete the contract in accordance with the agreement in accordance with his obligations to carry out the work.
I note, of course, that the contract was terminated by the homeowners on the 3 February 2022. The effect of under contract law is that the effect of termination of contract by the homeowners entitles them to make a claim for restitution and also for damages.
Mr Rigby made an impassioned response to the claim against him and understandably the outcome of these proceedings would be of great concern to him as a young builder just starting out in his life as a contract builder.
Nevertheless, I have to make a decision based on the evidence that I have before me. As I said, for the reasons given, I prefer Mr Chresby evidence over the evidence given. One written report by Mr swain and the joint report. Mr Swain was not available at the hearing to be tested on his evidence.
…
On the evidence I have, I'm satisfied that the builder failed to carry out the building works in accordance with the statutory warranties under section 18 B of the Home Building Act. That is, that the works were not done with due care and skill and that by doing so the builder breached the warranty."
The second aspect of the rule in Browne v Dunn (1894) 6 R 67 is concerned with the weight to be afforded to evidence which has not been the subject of cross-examination, and is to the effect that evidence upon which there has been no relevant cross-examination should not usually be rejected by the tribunal of fact. It might be legal error not to accept unchallenged and uncontradicted evidence which is not inherently implausible: Ghosh v Medical Council of New South Wales [2020] NSWCA 122 (Ghosh) at [69]-[70] (Brereton JA), (Simpson AJA at [137] agreeing).
Having regard to the evidence of Mr Chresby on behalf of the owners and the principles in Ghosh at [69]-[70], [137], we are satisfied that the builder has not established that finding that the building work was defective was against the weight of evidence in the manner explained in Collins at [76] and [77].
[9]
Whether the finding that the loss of the owners by reason by any defective building work was $20,000.00 was against the weight of evidence
Mr Chresby relevantly expressed the following opinions in joint expert report:
1. the value of all completed works was $10,000.00;
2. the cost of the removal the builder's waste was $4,000.00;
3. the cost of the repair of the consequential damage to the roof and the ceiling was $1,600.00.
In giving his oral extensive evidence in chief Mr Chresby repeated his opinions in [48(1)] and [48(2)] above.
The Tribunal gave the following reasons for its finding that the loss of the owners by reason by any defective building work was $20,000.00:
"At the outset of the hearing, the homeowners indicated to me that they were prepared to compromise the amount of their claim for the purpose of orders being sought today, the amount of $20,000, despite the submissions that they made. In their letter of the 6 April 2022 in the form of a statement to the Tribunal and also despite the claim made by their lawyers on their behalf in which claim was made in the amount of $27,000 which was a compromise on the loss that they claimed in their lawyers letter they had suffered as a result of the defective and incomplete work by the builder, which their lawyers say exceed an amount of $65,000.
…
The evidence is that the building works have now been completed by others as the homeowners were in a position where they attempted to mitigate their loss.
The amount claimed is that the original was originally claimed as being a refund of the money paid under the contract, which was in fact the applicants homeowners seeking restitution, in that the building works they received little or no benefit from the building works that were agreed to be carried out by them. That claim for restitution has now become a claim for $20,000 and on the evidence, I have before me, I am satisfied that that's an appropriate award of the applicants or homeowners' loss as a result of firstly any breach of contract by the builder and any breach of warranty for the work that was carried out."
The evidence accepted by the Tribunal is that the owners suffered a loss of $20,010.00 calculated as follows: $24,410.00 (the total paid to the builder) + $4,000.00 (the cost of the removal the builder's waste) + $1,600.00 (the cost of the repair of the consequential damage to the roof and the ceiling) - $10,000.00 (the value of all completed works).
Having regard to the evidence of Mr Chresby on behalf of the owners in the joint report and at the hearing and the principles in Ghosh at [69]-[70], [137], we are satisfied that the builder has not established that finding that the loss of the owners by reason by any defective building work was $20,000.00 was against the weight of evidence in the manner explained in Collins at [76] and [77].
[10]
Conclusion
Since none of the criteria in cl 12(1) of Sch 4 of the NCAT Act has been satisfied, we are not satisfied that the builder may have suffered a substantial miscarriage of justice. It follows that leave to appeal against the Tribunal Decision should be refused.
Even if we had been satisfied that the builder may have suffered a substantial miscarriage of justice, then having regard to the matters in Collins at [84(2)], we would not have exercised the discretion under cl 12(1) of Sch 4 of the NCAT Act to grant leave to appeal against the Tribunal Decision.
[11]
The disposition of the appeal
Since we have decided not to grant leave to appeal, we have decided to make an order refusing leave to appeal. Since we have rejected the grounds of appeal constituted by issues 2 and 3, we have decided to make an order that the appeal should otherwise be dismissed pursuant to s 81(1)(a) of the NCAT Act.
[12]
Orders
We make the following orders:
1. the time for lodgement of the notice of appeal is extended to 12 December 2022;
2. leave to appeal is refused;
3. the appeal is otherwise dismissed.
[13]
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 March 2023
Internal appeals may be made as of right on a question of law and otherwise with leave of the Appeal Panel: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b) of the NCAT Act: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law, which relevantly includes whether there has been a failure to provide proper reasons and whether there was a failure to afford procedural fairness.
Whether there has been a constructive failure to exercise jurisdiction is a question of law. In Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [9] Basten JA said (Beazley JA at [1] agreeing):
"[9] The adoption, on an appeal limited to errors in point of law, of language derived from the supervisory jurisdiction of the court must be undertaken with caution. It is, no doubt, an error of law for the trial court to fail to exercise its constitutional function, which is to resolve a dispute presented to it by the parties by applying the law in accordance with proper procedure. In the present case, that function was almost entirely satisfied by the resolution of disputed factual issues. The term "constructive failure to exercise jurisdiction" is used to describe a situation where the court has purported to resolve the parties' dispute but has not in fact done so. Thus, particularly with a court or tribunal required to provide reasons for its decision, it may become apparent from those reasons that a material issue has simply not been addressed or that material evidence has been overlooked. Examples of circumstances which may properly give rise to a concern on this kind were referred to by Gummow ACJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [23]. On occasion, the function of the decision-maker (which should include a court) has been identified as being to "give proper, genuine and realistic consideration to the merits of the case": Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 (Gummow J). …"
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 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:
1. the decision of the Tribunal under appeal was not fair and equitable (cl 12(1)(a)); or
2. the decision of the Tribunal under appeal was against the weight of evidence (cl 12(1)(b)); 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) (cl 12(1)(c)).
In Collins v Urban [2014] NSWCATAP 17 (Collins), the 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." (emphasis in original)
In Collins, the Appeal Panel at [77], without seeking to be exhaustive in any way, stated the authorities establish that:
1. if there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" within cl 12(1)(a) of Sch 4 of the NCAT Act;
2. the decision under appeal can be said to be "against the weight of evidence" within cl 12(1)(b) of Sch 4 of the NCAT Act 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.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
In Collins, the Appeal Panel at [84] summarised the general principles which govern the granting of leave to appeal:
"[84] The general principles derived from these cases can be summarised as follows:
(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(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;
(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,
BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];
(3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there."
The Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to any one or more of orders that the appeal is to be dismissed: s 81(1)(a) of the NCAT Act.
Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) relevantly provides that, in the case of an appeal from a decision of the Tribunal, an internal appeal must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision.
In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos), the Appeal Panel at [13] stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the appeal in s 36(1) of the NCAT Act, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.
Issue 1: whether an extension of time to lodge the notice of appeal should be granted
The relevant principles for the granting of an extension of time to appeal under s 41 of the NCAT Act are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [21] and [22]:
"[21] Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice.
[22] The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:
(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];
(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];
(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
(a) The length of the delay;
(b) The reason for the delay;
(c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
(d) The extent of any prejudice suffered by the respondent (to the appeal),
- Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and
(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]."
As to the criteria in Jackson at [22(3)]:
1. the length of the delay is short being 11 days;
2. the explanation by the builder for the delay is that the Wollongong Registry was closed when he attended on 30 November 2022 at around 4.00pm, he did not notice the lodgement instruction and he posted the notice of appeal to the Wollongong Registry on that day;
3. the builder's prospects of success are weak for the reasons set out in [37] to [55] below.
4. there is no evidence that the owners will suffer any prejudice.
In the circumstances, and particularly taking into account that the builder is not legally represented, we have decided that time for lodgement of the notice of appeal should be extended to 12 December 2022.