Robert William Gerrie t/as JHT Building Repairs Services v Allen James Baxter

Out of time?

1. The notice of appeal was received by the Tribunal on 15 April 2015. The Civil and Civil and Administrative Tribunal Rules 2014 (the Rules) require an appeal to have been lodged within 28 days of the day upon which the appellant was notified of the decision (Rule 25(4)(c). The notice of appeal records in a statutory declaration provided by Brianna Gerrie dated 2 April 2015 that the appellant became aware of the decision of 4 March 2015 on 9 March 2015. Accordingly, the notice of appeal should have been filed by 7 April 2015 (allowing for Easter Monday as required by Rule 6). Rule 25 is in the following terms: "25 External and internal appeals (1) An external or internal appeal (including, where required, an application for leave to appeal) may be made by lodging a notice of appeal. (2) The notice of appeal must be: (a) in or to the effect of the approved form, and (b) duly completed, and (c) lodged at the Registry, and (d) accompanied by the applicable fee (if any) for the appeal. (3) A notice of appeal need not specify the Division of the Tribunal (if any) to which the function of determining the appeal is allocated by the Act. However, if the appropriate Division is not specified or an incorrect Division is specified, a registrar may complete or alter the notice form accordingly. (4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged: (a) in the case where the enabling legislation specifies the period within which the appeal is to be made - within the period specified, or (b) in the case of an internal appeal against a decision made in residential proceedings - within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later), or (c) in any other case - within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later). (5) An appellant who lodges a notice of appeal must serve on each respondent a sealed copy of the notice as soon as practicable after lodging the notice."
2. The builder was able to supply at the hearing of the appeal evidence that he had filed the notice of appeal with "Service New South Wales" on 2 April 2015 and had paid $97.00 in part payment of the filing fee. The balance of the filing fee was paid on 15 April 2015. The notice of appeal bears the stamp of the Tribunal as having been received on 15 April 2015.
3. The question which arises from the above facts is whether the appeal was filed within time as required by rule 25. The answer to this question will be dealt with later in these reasons.

The grounds of appeal

1. The builder submits that the decision was not fair and equitable because the hearing occurred in his absence. The builder says that as a consequence of his absence he was not able to defend the case and was not able to present evidence.
2. The builder also submits that he was absent from the hearing because of confusion in the hearing date. He thought that the hearing was to occur on 11 March 2015, rather than the 4 March 2015. He also says that he had thought that the time for filing submissions was the 4 March 2015. No submissions were filed and the explanation for that is that the builder says that he had difficulties in obtaining an expert to assist him in his defence.
3. The grounds of appeal state that the builder had tried on numerous occasions to obtain "an independent building inspection from several sources" but was unable to obtain one due to "time restraints and location of site". He states that he has "since contacted Mr Gerard Totterollo who is an expert in this field and is able to attend an inspection at an agreed date". It is not stated when Mr Totterollo was located and furthermore there is no statement that the builder has endeavoured to seek the cooperation of the homeowner in having Mr Totterollo conduct an inspection. There is no reference to whether Mr Totterollo has been invited to look at the evidence of the homeowner being the evidence considered by the Tribunal at the hearing on 4 March 2015.
4. In the grounds of appeal the builder states that if leave to appeal is granted he will be able to "explain to the Tribunal in the directions hearing why the previous timetable was not complied with - experienced difficulty in obtaining expert evidence over the Christmas period, together with other impacting factors."
5. The grounds of appeal do not seek to address the finding made by the Tribunal Member on 4 March 2015 that the builder carried out work without holding the correct licence.
6. The homeowner opposes leave being granted and submits that the existing orders should remain in place.
7. Finally it should be recorded that the builder raises certain factual matters as to what was agreed between himself and the homeowner in relation to the work which the builder undertook. These factual matters are disputed by the homeowner.

Leave to file out of time

1. It is the opinion of the appeal panel that the notice of appeal was not filed in time because the notice of appeal was not accompanied by the applicable fee as required by Rule 25(2)(d). The fee was not fully paid until after the deadline (7 April 2015). That rule states that the notice of appeal "must" be accompanied by the applicable fee. The builder, however, contended that he had paid the fee requested of him by Service NSW, and only later discovered that it was insufficient, when approached by NCAT to pay the shortfall.
2. Previous decisions of the appeal panel have described the principles which are required to be considered when considering whether the time for lodgement of an appeal should be extended. The case which deals with these principles at some length is Jackson v. NSW Land and Housing Corporation [2014] NSWCATAP 22. At paragraph 22 of that decision the appeal panel said that in an application for an extension of time to appeal the appeal panel will be required to consider: 1. the length of the delay; 2. the reason for the delay; 3. the appellant's prospects of success, that is usually whether the appellant has a fairly arguable case; and 4. the extent of any prejudice suffered by the respondent (to the appeal). In addition the appeal panel stated that time limits should generally be strictly enforced unless the appeal panel is satisfied that to refuse the application for an extension of time would work an injustice (see paragraph 21).
3. In this case the length of the delay is short. The reason for the delay is understandable. The most important issue in considering whether to extend time in the circumstances of this matter, is the builder's prospects of success and this aspect is dealt with in the following paragraphs.
4. The builder's case is that he was absent from the hearing due to a misunderstanding and accordingly has not been given a reasonable opportunity to be heard. It is necessary to consider this in two parts. The first part is whether he had an opportunity to file and serve evidence prior to the hearing as required by Tribunal directions. Had such an opportunity been given and taken up it is possible that the Tribunal would have taken that evidence into account notwithstanding the appellant's absence. The second part of the issue as to whether the appellant had a reasonable opportunity to be heard is to consider the circumstances which gave rise to his absence at the hearing.
5. It is clear from the facts set out earlier in this decision that the builder had more than a reasonable opportunity to obtain, file and serve evidence in support of his defence. The reason for noncompliance as recorded in the notice of appeal is unpersuasive. The builder refers to difficulties over the Christmas period and other "impacting factors". However he had a number of months to collect that evidence but did not do so. In the opinion of the appeal panel the builder had more than a reasonable opportunity to obtain evidence and file it for consideration by the Tribunal at the hearing. He also had an opportunity to approach the Tribunal for an adjournment if, following reasonable attempts he had been unsuccessful in obtaining the expert evidence which he desired. No such application was apparently made.
6. With respect to the assertion that the appellant misunderstood the date of the hearing (he thought it was 11 March 2015, (rather than 4 March 2015) it is a factor which the appeal panel takes into account bearing in mind that people do make mistakes, and the question is whether some accommodation should be made for this mistake having regard to all of the circumstances including the affect on the homeowner.
7. In this matter a further consideration is the prospects of the builder being successful at a rehearing were one to be granted. The appellant seeks to rely upon a person who is described as an expert. His qualifications and expertise is not set out in the submissions provided by the appellant. In addition, the builder appears to make some concessions that the work the subject of this dispute may not have been completed to an appropriate standard and offers an explanation for that fact. For example he states that the homeowner requested that the kitchen cupboards be cut to length and placed "loosely on position for the flooring was to be tiled by another contractor at a later date and after the completion of the work." The homeowner disputes that assertion. A further matter for consideration is that the decision was partially based upon the fact that the builder did not have an appropriate licence. The builder conceded at the hearing of the appeal that this finding was not in dispute.
8. Taking the above factors into account the appeal panel does not regard the builder as having strong prospects of success at a rehearing were one to be granted.
9. The appeal panel has also had regard to the fact that had the builder appeared at the hearing on 4 March 2015 and sought to defend the case but without any supporting evidence, the opinion of the appeal panel is that the result would likely have been the same. That is to say, it is likely that the decision of 4 March 2015 would have been the same in circumstances where the builder appeared and took whatever steps in relation to his defence he thought appropriate but did not have supporting evidence from an expert. Given the fact that the appeal panel is of the opinion that the explanation for the lack of supporting evidence provided by the builder before the hearing is unpersuasive and inadequate, the appeal panel has formed the view that the fact that the builder made a mistake in the hearing and did not appear would most likely have not made any difference.
10. The appeal panel is conscious of the principle that generally speaking time limits must be adhered to unless it is apparent that adherence to the time limit will work an injustice. Subject to what is said later in these reasons the appeal panel is of the opinion that an injustice in this case would not result by reason of the appeal panel refusing to give the appellant leave to appeal. However, for the reasons described later in these reasons the appeal panel is of the view that the time for filing the appeal ought to be extended.
11. During the course of the hearing of the appeal the builder submitted that the result of the decision was unfair in that he was required to return all money to the homeowner, but the homeowner remained in possession of the goods and appliances supplied by the builder. In response the homeowner stated that the kitchen had "collapsed" and had partly been removed to the homeowner's backyard. The homeowner said that what was supplied was of no value to him at all and that he planned to obtain a replacement kitchen.
12. It is the opinion of the appeal panel that in order to do justice between the parties it is necessary to vary the order below so as to provide to the builder an opportunity to collect the goods which he supplied to the homeowner if he wishes to do so.
13. Accordingly for the purposes of effecting such a variation to the orders the time for filing the appeal will be extended and the appeal panel will substitute the existing orders for the following orders: 1. The time for filing the appeal is extended to 15 April 2015. 2. The appeal is allowed. 3. The orders made by the Tribunal on 4 March 2015 are affirmed with the exception that the date "4 April 2015" stipulated in the order for the payment of $9302.00 is amended to 21 August 2015. 4. If the appellant complies with the Tribunal's order by paying $9302.00 to the respondent on or before 21 August 2015 the respondent is ordered to give access to the appellant to enable the appellant to collect the kitchen and materials supplied by the builder within fourteen days of 21 August 2015. 5. If the appellant becomes entitled to collect the kitchen and materials by reason of order 4 above but does not collect them within 14 days of 21 August 2015 the respondent is at liberty thereafter to dispose of the kitchen and materials as he wishes.

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: 12 August 2015