Robinson v Quick Built Systems Pty Ltd

NCAT Appeal Panel|2020-05-05

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) from a decision made in the Consumer and Commercial Division of the Tribunal delivered on 10 February 2022.
The appellant purchased an Insulspan awning system (the panels or the product) from the respondent for use in residential building work. The applicant was a home owner and the Tribunal found his claim against the respondent was a building claim in respect of which the Tribunal had jurisdiction to hear and determine under s 48K of the Home Building Act 1989 (HBA).

Reasons of the Tribunal

The Tribunal dismissed the appellant's application and found: 1. There was no dispute that the structure was erected by the appellant's builder utilising some damaged panels; 2. The appellant and his builder gave evidence that the panels did not lock together as they had expected, so that there was a gap in the joining of the panels; 3. The evidence given to the Tribunal by the appellant's builder was to the effect that the panels were not properly calibrated. The Tribunal did not afford any weight to that evidence because the builder was not independent because he had installed the structure for the appellant. 4. A report was prepared by Mr Grant Charlwood on behalf of the respondent following his inspection of the site. Mr Charlwood contended that the faulty installation of the gutter by the builder was the cause of the leak to the structure and otherwise the panels were fit for purpose. The Tribunal gave little weight to the evidence of Mr Charlwood because aside from a reference to his builder's licence number, there was no information provided as to his "training, study or expertise". The Tribunal was also critical of his report because it contained various shortcomings in relation to his inspection, in particular a lack of photographic evidence or any record of the measurements which he made at his inspection. 5. Having regard to all of the evidence, the Tribunal found that the appellant, who had the onus of proof, did not satisfy the Tribunal that the product was defective and little weight was afforded to either the appellant's evidence from his builder or the evidence given by Mr Charwood on behalf of the respondent. 6. The Tribunal found that even if the appellant had established that the panels were defective, the appellant had failed to provide evidence to substantiate the amount of $5,000 which he claimed against the respondent. Although some panels were scratched and damaged as found by the Tribunal, there was no evidence of what was to be done, if anything, to rectify those issues. The amount claimed by the appellant was found by the Tribunal to be simply an estimate by the appellant of the cost of replacing some of the panels, without any evidence as to which panels needed to be replaced or any evidence of that replacement cost or that any proven defects in the panels required them to be replaced rather than repaired or rectified.

Appeal

The Notice of Appeal was filed on 11 March 2022, so that it was lodged within time. The appellant thought that he required an extension of time in Section 7 of the Notice of Appeal. We are satisfied that no extension is required.
The Notice of Appeal contended that there was no independent expert report or investigation to show that "building standards" had been met and that such an investigation was needed to "show that the panels were supplied faulty". The appellant further contended that a CCTV recording should have been considered by the Tribunal as being "extremely relevant" because it allegedly recorded admissions by the respondent's expert that the panels were faulty.
The appellant contended that the lack of evidence as to the reasonable and necessary measures to rectify the panels and the costs to do so could be "substantiated with cooperation of [the] respondent".
The appellant accepted that leave to appeal was necessary and he submitted that leave should be granted to enable him to obtain an independent expert report "to verify the panels and structure" (presumably meaning to verify that they were faulty) and to show that the "building standards and how products supplied did not meet those standards".
The appellant contended that the dismissal of the claim on the basis that there was no independent expert should not be permitted because he was protected by consumer rights, "none of which were met by the respondent". He further contended that the structure remains faulty, especially in wet weather and that "all evidence was not referred to or considered" by the Tribunal. He said that he was "conscious that my case was not well presented. I will seek representation for the appeal."
On 14 April 2022, the Appeal Panel adjourned the appellant's interlocutory application to extend time for lodging his material for the appeal.
At that same interlocutory hearing, the appellant sought to adjourn the hearing listed for 5 May 2022 to afford him the opportunity of obtaining legal assistance.
That application was refused on the basis that the appellant had been on notice that he needed to lodge his material for the appeal since 23 March 2022 and that his explanation of attempts to obtain legal assistance since that time were unsatisfactory. Although the application to adjourn was refused, the Appeal Panel amended the orders for the lodging and serving of material for the appeal. The time for compliance for the lodging of any material to be relied upon by the appellant for the appeal was extended to 19 April 2022.
The appellant lodged his submissions on 21 April 2022. Despite the lateness in lodgement the Appeal Panel takes those submissions into account.

Reply to Appeal

The respondent filed a Reply to Appeal (Reply) on 29 March 2022. The Reply supported the original orders made by the Tribunal and added that: 1. There was no evidence of any damage to the product; 2. There was no evidence to support the quantum claimed; 3. There was no evidence of the costs to rectify; 4. The appellant had every opportunity but did not obtain expert evidence of any alleged defects; 5. There was no evidence to support the appellant's allegation that the product did not meet "building standards".
The respondent contended that leave to appeal was necessary and it opposed leave being granted. The respondent said that "there is no new evidence to consider", there was no mistake in law and no error in relation to the facts. It said that all facts and evidence were "considered clearly [sic]".
The respondent opposed the appellant's application for an extension of time for the lodging of the appeal (if an extension was necessary) on the basis that it would create "undue unfairness".
The respondent lodged its submissions in reply on 29 April 2022.
The respondent was represented at the hearing of the appeal by Mr Michael White, the director of the respondent.

Statutory basis of the appeal

The Appeal Panel may make such orders as it considers appropriate in an internal appeal from a decision of the Tribunal: s 80(1) NCAT Act.
An internal appeal is not a re-hearing of the original proceedings or a mere opportunity for a party dissatisfied with the outcome in the original proceedings to re-argue its case: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10] (Ryan v BKB).
Internal appeals under s 80(2) of the NCAT Act may be made as of a right on a question of law or otherwise with leave (that is, with the permission) of the Appeal Panel. To succeed in an appeal, the appellant must establish that an error of law has occurred or otherwise, an error of the type that is appropriate to grant leave to appeal.

Is there a question(s) of law?

In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out a non-exclusive list of questions of law at [13], including: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
An error of law will also occur where there is a material failure by the Tribunal to respond to a "substantial, clearly articulated argument relying upon established facts" that may be characterised either as a failure to afford natural justice or as a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]-[25] (Gummow and Callinan JJ; Hayne J agreeing at [95]); DVE18 v Minister for Home Affairs [2020] FCAFC 83; (2020) 276 FCR 401 at [34]; followed by the Appeal Panel in Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231 (Goncalves) at [9(2)].
In appropriate circumstances, a failure by the Tribunal to deal with evidence may also be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. By s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance: Goncalves at [28]; Croghan v Rees [2021] NSWCATAP 328 at [40].
Having regard to the matters referred to above and the evidence before us on the appeal, we are of the opinion that there is no question of law raised by the appellant in his Notice of Appeal.
However, where, as in the present case, the parties are not legally represented, it is appropriate for the Appeal Panel to review the stated grounds of appeal, the material provided by the parties and the Tribunal's decision which is being challenged to ascertain 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] .
We are satisfied on our review of the Tribunal's reasons and the material lodged for this appeal, that no question of law arises in this appeal.

Principles of law for leave to appeal

The circumstances in which the Appeal Panel may grant leave to appeal from a decision 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; or 2. The decision of the Tribunal under appeal was against the weight of evidence; or 3. There was significant new evidence that was not reasonably available at the time the proceedings under appeal were being dealt with.
In the decision of Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at paragraph [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of sch 4, may have been suffered where there was a significant possibility or a chance that was fairly open, that a different and more favourable result would have been achieved for the appellant had the relevant circumstances in paragraphs (a) or (b) of cl 12(1) not occurred or if the fresh evidence under paragraph (c) of cl 12(1) had been before the Tribunal at first instance.
Further, even if an appellant from the decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of sch 4 of the NCAT Act, an Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal.
In Collins v Urban at [83] to [84], the Appeal Panel stated that ordinarily it is appropriate to grant leave to appeal only in certain matters. Those types of matters include issues of principle, questions of public importance, an injustice which is reasonably clear so that it would be unjust to allow the finding to stand, a factual error that was unreasonably arrived at and clearly mistaken or the Tribunal went about the fact finding process in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for the decision to be reviewed.

Consideration

In deciding this appeal, we have had regard to the following: 1. The Notice of Appeal; 2. The Reply to Appeal; 3. The appellant's written submissions lodged on 21 April 2022; 4. The respondent's written submissions lodged on 29 April 2022; 5. The Tribunal's Reasons for Decision; 6. The Application made by the appellant to the Tribunal in HB 21/44711; and 7. The oral submissions made by the parties to us at the hearing of the appeal (including submissions relating to photographs 5 and 6 of Mr Charlwood's report that were provided to us during the hearing by the respondent and received into evidence with the consent of the appellant).
In relation to the appellant's request that he obtain the services of an independent expert, as we have set out above, an internal appeal is not a re-hearing of the original proceedings or a mere opportunity for a party dissatisfied with the outcome in the original proceedings to re-argue its case: Ryan v BKB at [10].
In McInnes v Rheem Australia Pty Limited [2021] NSWCA 89 Gleeson JA, with whom Bell P and Payne JA agreed, observed at [44]: [44] It is trite that a party is bound by the case he or she ran below. As the High Court said in University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 483, in the context of an application to reopen a case following judgment: 'It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had and (sic) opportunity to do so.' It would be inimical to the interests of justice to allow Ms McInnes to make an entirely new and different costs application on appeal, after having failed on a different basis before the primary judge: Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645-646; Water Board v Moustakas (1988) 180 CLR 491 at 487; [1988] HCA 12.
We see no error in the Tribunal's finding that in the absence of any independent expert evidence adduced by the appellant, the appellant failed to prove that the panels were defective. It was open to the Tribunal to consider the evidence of the appellant's builder but afford it little weight as he was responsible for installing the panels, particularly since the respondent contended that the method of installation was faulty.
As the Tribunal observed, the appellant had the onus of proof, so that even when giving little weight to the evidence given by Mr Charlwood on behalf of the respondent because of the deficiencies in his report observed by the Tribunal at [14], the appellant was found to have failed at the threshold to prove that the panels were damaged or defective before installation or that they were otherwise not fit for purpose.

Damaged panels

As to the damaged panels, the appellant submitted to us that upon their delivery, there was "lots of damage". The Tribunal rejected the respondent's submission that the appellant signed a delivery document that purported to have accepted the panels as being "received in good order" because the document relied upon was a "dispatch docket": [9]. We accept the respondent's submission that the document is actually a delivery document and that it was signed by the appellant as "Zac" acknowledging receipt of the panels "in good order".
However, we also accept the submission put to us at the hearing by the appellant that the damaged panels were at the bottom of the stack of panels when they were delivered and not noticed until after they were unpacked.
The Tribunal found that there was no dispute that the appellant raised the issue of damaged panels by sending an email to the respondent with some photographs of damaged panels attached, shortly after delivery (allowing for the fact that this was over the Christmas period). The damage appears to have comprised damage to the edges of some panels and some scratches to the surface of some panels that are depicted in photographs at page 10 of the appellant's written submissions.
The Tribunal accepted the appellant's evidence that there was some damage to the panels when they were delivered and that he reported the damage on the day of delivery and shortly later by the email referred to above: [8].
The Tribunal also found that "there was no dispute that the applicant had his builder erect the structure, using the damaged panels": [11]
The respondent did not challenge the findings of the Tribunal at [8] and [11].
In any event, the appellant said that he undertook a "self-repair of the panels" and "fixed the damage". He then had his builder proceed with the installation that included using the panels damaged at the time of delivery and these were installed adjacent to the gutters (he said they "touched the gutter") so that they could be easily removed later if they were to be replaced.
The appellant accepted at the hearing before us that "damage [to the panels] is not an issue". We are satisfied that the issue of damaged panels is not directly relevant to the issues on this appeal.

Fitness for purpose

The evidence of the appellant and the builder at the hearing was described by the Tribunal so that when installed, "the panels did not come together as may have been expected": [11]. As in the case of the damaged panels, the appellant elected to install the panels and continued with the complete installation, notwithstanding the panels did not come together so that there was a gap where the panels join.
The joining mechanism is similar to a "tongue in groove" method where, to use the words of Mr White, the panels "click in together" and make a "nice clicking sound" when installed correctly. Mr White submitted, "we know there is a gap but we don't know why".
In our view, in this appeal as in the case before the Tribunal, the appellant has not established to the requisite degree of proof as to why the problems with the joining of the panels during the installation was caused by a faulty product supplied by the respondent. The allegation by the appellant that the panels had not been properly calibrated was no more than an assertion. There was no evidence to support or prove that assertion. Since that contention was denied by the respondent, the onus remained on the appellant to prove it. He did not.

The CCTV recording

The Tribunal's decision to not allow into evidence the audio of the CCTV recording of the alleged conversation between the appellant and Mr Charlwood in which Mr Charlwood purportedly said that the panels were defective, was correct. The Tribunal found that without the consent of Mr Charlwood, the footage (or at least the audio from that footage) was inadmissible. Mr Charlwood said that he believed the appellant "was manipulative in conversation whilst on site" and the Tribunal found that this "would appear to confirm that Mr Charlwood made statements whilst on site that he might not have made if he had known that the interactions were being recorded": [12].
The appellant contended that since the Tribunal is not bound by the rules of evidence, it should have admitted the CCTV audio. The submission by the appellant that the Tribunal is not bound by the rules of evidence is immaterial.
Firstly, the rules of evidence provide a "guide" to the Tribunal: per Flick and Perry JJ in Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at [97]. In Re Pochi and Minister for Immigration & Ethnic Affairs (1979) 2 ALD 33, (although in the context of administrative decision making but which is equally applicable to the Tribunal's decision-making processes generally), Brennan J said (at 41): "The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that "this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force"…. To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J. pointed out, though in a dissenting judgment, in The King v. War Pensions Entitlement Appeals Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at p.256: "…But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party….' "
Secondly, s 7(1)(b) of the Surveillance Devices Act 2007 (NSW) (the SD Act) makes it an offence for a person who knowingly uses a listening device to record a private conversation to which a person is a principal party. The finding by the Tribunal that Mr Charlwood did not know about the making of the recording was not challenged by the appellant. He did not consent to its use in the hearing before the Tribunal. It also appears that the appellant intended to make the recording. Mr Charlwood's evidence (that appears to have been accepted by the Tribunal) was that the appellant was "manipulative in conversation whilst on site".
A recording made by CCTV is a "listening device" within the meaning of s 4(1) of the SD Act: listening device means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear.
Further, Mr Charlwood was a "principal party" to the conversation. Section 4(1) defines "principal party" to mean: … a person by or to whom words are spoken in the course of the conversation.
Section 7(3) of the SD Act provides for exceptions to the offence. Relevant to this case is s 7(3)(b)(i) which provides: Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if - … (b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation - (i) is reasonably necessary for the protection of the lawful interests of that principal party, …
Section 4(1) defines "private conversation" to mean: any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only - (a) by themselves, or (b) by themselves and by some other person who has consent, express or implied, of all of those persons to do so, but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.
In Kanjian Holdings No 1 Pty Ltd v Kanjian; Kanjian v Kanjian [2021] NSWSC 389; (2020) 155 ACSR 290 (Kanjian), Henry J held at [477]: 477. A private conversation is one which may reasonably be taken as intended to be confined and listened to by the persons who are a party to the conversation. It may be private even though it occurs in a public place, such as a restaurant, or the participants are at liberty to tell others about it later: Thomas v Nash (2010) 107 SASR 309; [2010] SASC 153 (Thomas v Nash) at [36]-[37], cited with approval in RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 3) [2018]FCA 404 at [23]-[24]; Poland v Hedley [2019] WASC 403 at [33], [36].
At [485]-[487] of Kanjian, her Honour stated: 485. While "lawful interest" is capable of a broad construction, the statutory context suggests it is not open ended. The recording of a private conversation 'just in case' it might prove advantageous in future civil litigation is not enough. The Court is, however, more likely to find that a recording is made in the protection of a person's lawful interests where the conversation relates to an allegation of a serious crime or resisting such an allegation, or where a dispute has "crystallised into a real and identifiable concern about the imminent potential for significant harm to the commercial or legal interests of a person": Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 at [49]; Thomas v Nash at [45], [48]; Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd (2018) 132 SASR 63; [2018] SASC 116 at [103]-[105]. 486. The reasonableness requirement imports an objective test: Sepulveda [Sepulveda v R [2006] NSWCCA 379] at [118], [139]. To be "reasonably necessary", the recording need not be essential for the protection of the lawful interest; it is sufficient that it is reasonably appropriate for that purpose: Sepulveda at [117]. 487. The nature of the lawful interest asserted may also bear on whether the recording is reasonably necessary. It may be that the more tenuous the interest, the less likely it will be objectively necessary to protect it by recording a private conversation: Dong v Song [2018] ACTSC 82 at [36].
In conclusion, her Honour held at [501]: 501. The policy underlying the Surveillance Devices Act reflects an aversion to the secret recording of private conversations and suggests the Court should not be too ready to find that the desirability of admitting such evidence outweighs the undesirability of receiving it.
Having regard to the above principles discussed in Kanjian, the circumstances involved in the making of the secret recording by the appellant in the CCTV audio and the relatively low level of the seriousness of the issues in dispute before the Tribunal, we are satisfied that the Tribunal was correct in the exercise of its discretion to not allow the appellant's secret CCTV recording into evidence.

Was the decision fair and equitable?

As to whether the decision was fair and equitable, relevant to this ground for leave to appeal, is whether there has been a denial of procedural fairness. On the basis of the material provided in the appeal, we are not satisfied that there was any denial of procedural fairness. As we have set out above, in our view the Tribunal correctly exercised its discretion to refuse to admit the secret sound recording taken of the conversation between the appellant and Mr Charlwood without the latter's knowledge or consent.
The appellant was given a full opportunity to provide evidence and an opportunity to present his case. The fact that the appellant did not call an independent expert does not constitute a denial of procedural fairness but a failure to prove the appellant's case to the requisite standard on "the balance of probabilities".

Was the decision against the weight of the evidence?

In relation to whether the decision was against the weight of evidence, this ground of appeal may arise where the overall evidence preponderates so strongly against the Tribunal's conclusion that the decision made by the Tribunal was not reasonably open to it. That is not the case here. The Tribunal was presented with competing evidence, in particular that given by the appellant's builder who installed the panels and erected the structure including the gutter and the evidence of Mr Charlwood, the respondent's expert who was also a licensed builder, who said that the gutter, as installed, was the cause of the water leaks.
The Tribunal's reasons make it clear that the Tribunal had regard to that competing evidence. We consider that overall, the Tribunal's decision was open to it on the evidence that was relied upon by the parties at the hearing.

Photographs 5 and 6

We are of the view that although the evidence of Mr Charlwood was given little weight overall by the Tribunal, his photographic evidence comprising photographs 5 and 6 could have been afforded more weight by the Tribunal. Mr Charlwood did hold a builder's licence as stated in his report and as found by the Tribunal [14], even if any other areas of his expertise may not have been disclosed in his report.
By the consent of both parties, those two photographs were provided to us by the respondent during the hearing as part of its evidence in the appeal.
The Tribunal was correct to find that most of the photos in Mr Charlwood's report were taken from ground level (at [14]). However, the photographic evidence comprising photographs 5 and 6 were, as submitted by Mr White, apparently taken on the roof by Mr Charlwood. The outcome of the Tribunal's decision would not have been different if it had specific regard to those two photographs, however they were the subject of considerable discussion at the hearing before us so we will briefly discuss the relevance of that photographic evidence in the appeal.
The importance of photographic evidence was considered by the Appeal Panel in Marcus v Carroll [2022] NSWCATAP 141 at [15] to [18]. Although in that case the Tribunal was found to have erred by overlooking any of the photographic evidence relied upon by the appellant, it does illustrate the weight and significance to be afforded photographic evidence that is "material" to the issues in dispute.
The photographs numbered 5 and 6 from Mr Charlwood's report would appear to confirm the correctness of the Tribunal's finding that notwithstanding the limited weight given by the Tribunal to Mr Charlwood's report, the appellant failed to discharge the onus on him to prove on the balance of probabilities that the panels were not fit for purpose or that the defective structure was not caused by faulty installation.
The submissions made by Mr White on behalf of the respondent, by reference to those two photographs, was that the gutter was not properly fixed to the roof. As the Tribunal noted at [14], Mr Charlwood said that although he could not see if the "Z" fascia fixing (Z fascia) - which is shown in photograph 6 - was positioned hard up against the polystyrene and the panel under-skin, he said there was an incorrect roof sheet cut-back of approximately 30 mm past the inside leg of the gutter. He said that the minimum cut-back should be 50 mm into the gutter system. The Tribunal appeared to not accept that evidence because Mr Charlwood did not provide photographic evidence of the measurements to which he referred in his report.
Mr Charlwood stated in his report that he could only see evidence of one Z fascia as depicted in photograph 6. He said that the gutter was installed too low beneath the roof sheets. By reference to photograph 5 before us, Mr White said that there appeared to be some gaps at the edge of the panels where they meet the gutter. Mr White said that those gaps would allow water ingress but that could be easily and quickly fixed. However, Mr White admitted that he had not personally inspected the roof.
The appellant's written submissions at page 15 assert that the Z fascia "is pushed hard up against the polystyrene but as the sheets were the incorrect length there was still not enough clearance".
The evidence by reference to the respondent's tax invoice dated 12 December 2019 shows that the appellant was invoiced for 17 Insulspan panels at 4 metres in length. As we understand the delivery docket in evidence, that is what was delivered to the appellant on 20 December 2019. There is no reference anywhere in the Tribunal's reasons to any allegation made by the appellant that the panels were the incorrect length or other than what the appellant ordered and was invoiced, save for them not being calibrated and some of them being damaged as discussed above.
If the panels were the incorrect length, this would presumably have been observed and therefore known to the appellant or his builder when the panels were either first delivered or at the latest, at the start of the installation process.
However, the Tribunal characterised the only issues raised by the appellant at [1] as a complaint that "the product supplied was damaged, not properly calibrated and some parts were not the correct colour". Further, at [11] the Tribunal dealt with the issue of whether the panels were not fit for purpose and only referred to the allegation by the appellant that the panels were not properly calibrated. As we understand that complaint, it refers to the allegation that the panels were not within tolerance and could not be joined together properly.
Nowhere in the Notice of Appeal does the appellant contend that the Tribunal failed to address an issue about incorrect panel lengths, if it was raised by the appellant at the hearing. The appellant has not sought to provide us with a transcript or sound recording of the hearing to enable us to determine if this was an issue raised by the appellant at the hearing. That is an important aspect of an appeal particularly where the appellant requires leave to appeal on the basis that, as contended in the Notice of Appeal, "all evidence was not referred to or considered" by the Tribunal.
The appellant was directed by Order (2) made by the Appeal Panel on 23 March 2022 to lodge with the Tribunal and serve on the respondent "the sound recording or transcript of the hearing at first instance …" by 13 April 2022. As stated above, compliance with Order (2) was extended by orders made on 14 April 2022 to 19 April 2022. The appellant did not provide a sound recording or transcript of the hearing at first instance in support of his appeal.
In the absence of the appellant lodging the sound recording or transcript of the hearing at first instance as directed by the Appeal Panel on 23 March 2022 and again on 14 April 2022, we are not in a position to conclusively determine whether the decision under appeal was not fair and equitable or against the weight of evidence, as alleged by the appellant in the Appeal. The Appeal Panel has adopted this approach in circumstances where the sound recording or transcript of the hearing at first instance has not been supplied on an appeal: Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 at [22]-[26]; Geracitano v Cloughessy [2021] NSWCATAP 329 at [23]-[27]; Lazaris v Kale [2022] NSWCATAP 36 at [23]-[28].
On the limited and incomplete material provided by the appellant in support of his appeal, in all the circumstances, it appears to us that the issue of incorrect panel lengths was not squarely raised (if was raised at all) by the appellant before the Tribunal.
The only evidence of which we are aware going to this issue is a very brief email (if it is a complete copy rather than an extract) from the appellant to Mr White dated 3 September 2021 and referred to at page 14 of the appellant's written submissions (well after the installation). That email by the respondent asserted that "the panels were not manufactured correctly. 50mm is standard … Your sheets were from 20 to 40mm". The appellant has not put into evidence the response, if any, from Mr White.
Interestingly, the date of that email from the appellant is the day after Mr Charlwood's report of 2 September 2021. Whether this issue is what the appellant was wanting to establish by the audio recording from the CCTV footage is not known but the email refers to "Grant" (Mr Charlwood) allegedly saying to the appellant that "they [the panels] should have been sent back to the manufacturer but I wasn't able to do that was I Michael [being a reference to Mr White]".
That email should not necessarily be construed as an admission by Mr Charlwood that the panels were defective because it can also be read as meaning that if the panels were not what was ordered by the appellant or were too short and therefore not fit for purpose, then the appellant should have returned them to the manufacturer. The evidence does not suggest that this issue was a matter of which the appellant was aware at the time of installation or that if he was, he and his builder proceeded with the installation in the full knowledge that the panels were not fit for the purpose for which they were purchased. In fact, there is no evidence that the respondent was ever informed of the specific purpose for which the panels were to be supplied. Therefore, there is no evidence that the respondent was advised and on notice or ought to have been aware of the appellant's particular requirements for this installation (if it be the case and which was not proven) that the panels had to be 5 metres in length.
The appellant has not given evidence as to why he was not able to return the panels or why he did not return them but he did submit at the hearing that it was a practical reason because he had other works that would be held up if he did return them.
In the circumstances, we are satisfied that the decision to proceed with the installation was either, an informed choice made by the appellant, albeit perhaps reluctantly, with knowledge of the possible consequences of installing defective panels, so that the responsibility for installing those defective panels falls on the appellant. The alternative is that his builder accepted the risk of undertaking an installation with some damaged panels and with panels that were not fit for purpose, when he is the person ultimately responsible to ensure that his building works comply with the provisions of the HBA, the Building Code of Australia (BCA) (if applicable) and any relevant Australian Standards.
The Tribunal's decision was therefore not against the weight of evidence and this ground for leave to appeal also fails.

Request for an independent expert report

In relation to the proposal for new evidence raised in the Notice of Appeal, the appellant has not provided any reasons for his failure to obtain such evidence, including independent expert evidence prior to the hearing before the Tribunal. Further, we do not consider that any such report (that has not yet been obtained by the appellant) would constitute significant new evidence that was not reasonably available at the time of the hearing before the Tribunal.

Quantum

The Tribunal found that the appellant failed to establish that the panels were defective. We agree with that finding. The Tribunal found at [17] that the appellant failed to prove his claim for loss and damage.
The question of whether the Tribunal erred in failing to find an amount referable to such defects is irrelevant given our findings above.
In any event, we are satisfied that the Tribunal was correct in its assessment that the appellant had provided no evidence to substantiate the amount claimed by him in the sum of $5,000. The evidence relied upon by the appellant was set out in the table at page 4 of the appellant's written submissions. We see no error on the part of the Tribunal at [17] in describing that table as estimates of damage claimed by the appellant but which does not go to the question of the cost of what is both necessary and reasonable to rectify the defective structure: see for example, Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 where Dixon CJ, Webb and Taylor JJ said at 618 (in the context of rectification work which does not accord to the contract between the parties but which we accept as a general proposition where rectification of defective building work is claimed by a party): … not only must the work undertaken be necessary to produce conformity, but that also, it must be a reasonable course to adopt.
The Tribunal found at [12] that there was no evidence to identify the panels that needed to be replaced or what was needed to be done by way of rectification and other than an estimate of costs provided by the appellant, there was no objective evidence as to the replacement costs of such panels. On our assessment of the evidence, we agree with those findings by the Tribunal.

Disposition of the appeal

We are of the view that the appellant has failed to establish that he has suffered a substantial miscarriage of justice and overall, the grounds for leave to appeal that are set out in cl 12 of Sch 4 of the NCAT Act, have not been made out. Even if they had been, we would not have exercised our discretion to grant leave to appeal. That is because the basis on which leave to appeal would ordinarily be granted, as set out above from Collins v Urban at [83] to [84], does not arise in this case.

Orders

We make the following orders: 1. Leave to appeal refused. 2. Appeal 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: 09 June 2022

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