Robust Builders Pty Ltd v Bhardwaj

NCAT Appeal Panel|2020-01-22

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 against a decision made in the Consumer and Commercial Division of the Tribunal on 24 September 2019.
The application to the Tribunal was brought by Mr and Mrs Bhardwaj (the owners) against Robust Builders Pty Ltd (the builder) for damages for breach of statutory warranty. The builder filed a cross-application seeking damages for loss of profit and unpaid variations. The builder was ordered to pay to the owners the sum of $154,463. The builder appealed.
For the reasons set out below, we have decided to dismiss the appeal.

Tribunal proceedings and decision

The two applications were first listed for hearing before the Tribunal in October 2018 and April 2019 respectively over a period of 4 days.
In the Tribunal below Senior Member Goldstein relevantly commented and found as follows in his Reasons for Decision at [13]: "I was not impressed with Mr Mehndiratta's evidence or his actions in the carrying out of the contract works. If I am to believe as evidence, it was necessary to sign 3 contracts with the owners for the construction of the contract works. I cannot accept that it was necessary for that to occur. My overall impression of Mr Mehndiratta was that he is not competent in preparing contract documents that comply with the requirements of the act and that he would do and didn't do whatever was in the builder's interests during the course of construction in order to protect it from financial loss in the construction of the works. I also find that the facts indicate that he was either unaware of or in different 2 fundamental principles concerning entry into a building contract. For example, the 1st contract entered into between the parties, on a form of contract prepared by the builder, was dated 8 August 2000 and, yet the complying development certificate exhibit (4) allowing construction to commence was given on 13 December 2016. Mr Mehndiratta's evidence indicates that preliminary work was carried out before 13 December 2016. More fundamentally, the scope of the work under the contract could not be known with certainty until such time as the development certificate was issued, which identified the approved plans, details and specification. This gave rise to a difficulty that was both theoretical and also practical, namely how could a builder in August price for a scope of work that would only be clarified in December when development approval was actually obtained. The practical consequence of this becomes immediately apparent upon a perusal of exhibit 4 which I find establishes that the drawings that condition 8 of Part 2 of the Complying Development Certificate required the builder to comply with were all dated after the contract was signed. In these circumstances the inferences open that the contract price of $400,000 may not have allowed for all of the work that was required to 'be carried out in accordance with the plans and specifications to which the complying development certificate relates' as stated by condition 8 of Part 2. This was a problem of the builder's own making by not adequately identifying the works the subject of the contract which is traditionally done by referring to the relevant drawings and specifications which depict and describe the building works. 14 I find that Mr Mehndiratta did request the owners to sign contract forms that were not completed. In cross-examination Mr Mehndiratta often gave non responsive answers, or evidence which I found was self-serving and just not credible. I do not accept Mr Mehndiratta as a witness whose evidence I can rely on unless his evidence is corroborated by another witness or a document."

Scope and nature of internal appeals

Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act).
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: 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.
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 Schedule 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. 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 v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 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.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, 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; (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.

Documentary material considered

In deciding the appeal, we have had regard to the following: 1. The amended grounds of appeal filed and served on 17 December 2019. 2. The amended reply to appeal filed and served on 18 December 2019. 3. An agreed bundle of documents consisting of five twin ring folders containing the evidence filed by the parties in the proceedings below and a transcript of the proceedings. 4. The Appellant's outline of submissions amended as at 20 January 2020. 5. The Owners' submissions in response dated 17 January 2020. 6. The Appellant's Outline Submissions in Reply dated 21 January 2020.

Notice of Appeal

The Notice of Appeal was lodged on 21 October 2019, which is within the 28 day time period specified in cl 25 of the Civil and Administrative Tribunal Rules 2014 (the Rules).

Grounds of Appeal

The grounds of appeal specified in the Amended Notice of Appeal dated 17 December 2019 are: 1. The Member erred in law in finding that 'the plans and specifications referred to in complying Development Certificate D6K44D1 were contract documents which the builder was contractually obliged to comply with' (paragraph 68 of the reasons) and formed the scope of works within the first contract. 2. This is because those plans and specifications did not come into being until 13 December 2016, some 4 months after the parties signed the contract. As per Franklins Pty Ltd v Metcash Trading Limited [2009] NSWCA 4907 "a written contract should be construed bearing in mind those facts at the time of the execution of the contract that the parties knew, or that it can reasonably be assumed they knew, that could impact upon the meaning of the words of the contract: [14] per Allsop P (Giles JA at [63] agreeing); [305], [322] per Campbell JA (Giles JA at [42] - [43] agreeing). Put simply, it was incorrect as a matter of law for the member to retrospectively incorporate a document into a contract that was only created after the contract had been formed. Third Contract 3. In the alternative, the Tribunal erred in law in finding, contrary to the rule in L'Estrange v Graucob Ltd [1934] 2 KB 394, that the Third Contract (and related documents) was not binding on the Owners notwithstanding that they had signed that document (and inclusions therein) (paragraph [50]). 4. The Tribunal erred in finding that the contract price and the Third Contract had been altered from reading $400,000-$540,000 after the owners had signed (paragraphs [49] and [50]), being a finding made against the weight of evidence. 5. The Tribunal erred in finding that the Third Contract was blank when it was signed by the Owners (paragraph [50]), being a finding made against the weight of evidence. 6. Given the findings as to the scope of the work in paragraph [68], the Tribunal erred in finding that the Third Contract contravened s 7(2)(c) and s7(2)(d) of the HBA such that restriction on bringing claims for damages in s10 were engaged (paragraphs [54] to [58]).
Counsel for the appellant submitted that paragraphs 1 to 3 of the amended notice of appeal constitute errors of law for which leave is not required (s80). In respect of grounds 4 to 6, leave is sought, as it is submitted the findings of fact were made against the weight of evidence.
It was submitted by the respondent that all grounds of appeal require leave, as none constitute errors of law, and all grounds are essentially an attempt by the appellant to revisit findings of fact.
For the reasons that follow we agree with the respondent.

The appellant's argument

We note that the appellant's outline of submission dated 20 January 2020 makes no reference to the amended grounds of appeal but raises different grounds of appeal. Where the submissions and the amended grounds of appeal differ, we have referred and decided the appeal in accordance with amended grounds of appeal filed and served on 17 December 2019.
The following issues were not pleaded or particularised in the amended grounds of appeal but were included in the appellant's counsel's oral and written submissions: 1. a submission that the first contract for $400,000 which was found to be enforceable, cannot have incorporated the Complying Development Certificate D6K446D1 ( "CDC") "as a matter of law"; 2. a submission that the third contract and its related documents, in particular the signed "Letter of Acceptance" dated 23 September 2017 reflected the actual agreement between the parties once the actual scope of works was known and agreed upon; 3. a submission that "no written contract binds the parties" (see submissions at [33]); 4. a submission that the Tribunal erred when it failed to consider a 2015 price list and that the price list formed part of the 2016 contract; and 5. a submission the contract is void ab initio for uncertainty.
It was not stated whether the additional grounds raised in these submissions constituted errors of law, or grounds for which leave may be required, nor was leave sought to rely on these additional grounds.

Consideration - Grounds 1 and 2

The respondent submits that the appellant did not raise grounds 1 or 2 at the hearing before the Tribunal. The appellant contends that the approved plans and specifications referred to in the CDC could not form part of the first contract, and could not form the basis of a scope of work because they came into existence after the contract was formed . Although this was not set out in the grounds of appeal, the appellant submits that in the absence of an existing CDC the parties could not have entered into the contract and the contract must be "void ab initio".
The appellant contends that the finding of Senior Member Goldstein in this regard constitutes an error of law.
We are satisfied that this ground was not raised before the Senior Member at the hearing. We have not been taken to transcript references or submissions filed below which would indicate that either grounds 1 or 2 were raised at first instance. We have had regard to the amended points of claim included in the appeal bundle at pages 392 and following and it contains no such argument. It is clear that the parties are bound by the conduct of their case at first instance and on that basis we are satisfied that new grounds should not be able to be raised on appeal as this would not facilitate the just, quick and cheap disposition of issues between the parties.
The High Court observed in Water Board v Moustakas (1988) 180 CLR 491 at 497: "a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below".
The exceptions to this principle were considered in more detail by the Court of Appeal in Mamo v Surace (2014) 86 NSWLR 275; [2014] NSWCA 58, at [76] and [77] as follows: "76 There are recognised exceptions to the principle that a party is bound by the conduct of his or her case. Thus, there are cases which recognise that when a question of law is raised for the first time in an ultimate court of appeal (as well as an intermediate court of appeal), as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 (at 319) per Mason J; Coulton v Holcombe (at 8). This exception will not apply where, if the new ground could possibly have been met by calling evidence at the hearing or if, had the ground been raised below, the respondent might have conducted the case differently at trial: Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631 ("Multicon Engineering") (at 645) per Mason P (Gleeson CJ and Priestley JA agreeing). 77 The particular circumstances of each case must be considered, "with due recognition that mistakes occur, that second thoughts are sometimes good thoughts, and that the appellant is entitled to justice; but extending justice to an appellant who has failed to take a point at the trial may work an unacceptable injustice on the respondent": Chilcotin Pty Ltd v Cenelage Pty Ltd [1999] NSWCA 11 (at [18]) per Giles JA (Mason P and Priestley JA agreeing)."
The owners conducted their case on the assumption there was no dispute about the formation of the contract and they collated their evidence and conducted their case accordingly. There was no evidence required to prove that the plans and specifications forming part of the development consent, once supplied by the builder, would form part of the contract. This was not put in issue by the builder. Indeed, the evidence from Mr Bhardwaj in his 15 February 2018 statement was to the effect that he received final plans from the builder on 6 September 2016 and that he approved those plans. The Member was correct to find that there was no "proper description" of the building works [21] at the time of the formation of the contract and was correct in his conclusion, that regardless of the lack of specificity, "the owners and the builder intended to be bound by this contract despite its shortcomings" [22]. We are satisfied that if the formation of the contract had been called into question at the hearing below, the owners would have conducted their case on a different evidentiary footing.
Accordingly, it appears to us that the issues raised by grounds 1 and 2 are questions of law which depend on facts that are in dispute. We believe that the issues raised by grounds 1 and 2 cannot be dealt with on these appeals without injustice to the owners. Consequently we do not allow leave to raise an issue that was not raised in the hearing below and dismiss this ground of appeal.
The second ground of appeal purports to be nothing more than a submission to support the first, it commences with the words "that is because". If we understand the ground correctly, it is submitted although the plans and specifications were referred to in the contract signed on 8 August 2016, because the plans were not finally approved until December 2016, and "did not come into being", the CDC and incorporated plans could not have formed part of the contract.
We are of the view that this second ground must also fail.
It was not in contention that the standard HIA residential building contract was entered on 8 August 2016 but the complying development certificate incorporating all plans and specifications (CDC) came into existence on 13 December 2016. Yet the builder had commenced some work before 13 December 2016 regardless of the fact that the precise scope of work under the contract could not be known with certainty until such time as the development certificate was issued, and the parties part performed their contractual obligations. The builder commenced work and the owners commenced payment. We have not been provided with any authority for the proposition that parties may not enter into a contract in the absence of a final CDC. As the Senior Member below stated, the risk in embarking on such a contract lies entirely with the parties.
We are not persuaded that the Senior Member erred when he concluded (at [60] and following) that the first contract included the complying development consent because the contract demanded that all plans and specifications formed part of the contract; and that all work under the contract must comply with the conditions of the complying development certificate as set out in a list of architectural, structural and stormwater plans.
This appears to have been acknowledged by the parties. At point 4 of the owners' points of claim it is pleaded that "on 6 September 2016, the applicants [owners] approved the building plans prepared by the respondent". This fact was admitted at point 1 of the builder's Points of Defence (p.402 of the agreed bundle). In addition, Clause 1 of the contract acknowledged that the plans were not available at the time it was executed and the contract stated specifications were "to be supplied by Robust Builders Pty Ltd t/as Prime Granny Flats". It seems patently clear that that expressly records a mutual understanding and acknowledgment that the builder would supply the specifications at a later stage. In short, we found nothing to dispel our conclusion that those words indicate the parties' agreement that the contract would bind them notwithstanding that the plans and specifications had not been finalised. For these reasons this ground of appeal must fail.
A further issue was introduced by counsel for the appellant during oral submissions. It was submitted that the first contract was an agreement to construct a 36sq building to "lock up" only. The words "lock up" appear in a "price list" dated March 2015 at page 431 of the agreed bundle. It was submitted that this document establishes the Senior Member erred when he concluded that the parties intended to be bound by the first written contract for its stated price of $400,000. We do not accept the contention on behalf of the appellant that the "price list" establishes that the learned Senior Member had arrived at findings of fact contrary to the weight of the evidence. As the reasons for decision make clear, the first contract had no attachments (and that is undisputed see paragraph 21). We have not been taken to evidence led in proceedings below that would support the contention the parties were bound by the "price list".
We have concluded that this additional ground of appeal seeks to challenge findings of fact, for which leave of the appeal panel is required. Insofar the appellant requires leave to introduce a further ground of appeal, we refuse such leave. We believe that the issues now raised cannot be dealt with without injustice to the owners.
A further ground of appeal is raised on the appellant's behalf in written submissions. That is to the effect that a subsequent document entitled" Letter of Acceptance" came into existence on 23 September 2017. It is submitted the document: "reflected the actual agreement between the parties once the actual scope of works was known and agreed upon" (See submissions page 1681).
We cannot agree. The question of which scope of work was binding on the parties turned on a series of facts summarised by the Senior Member from paragraph 60 onwards of his Reasons for Decision. The critical findings of facts by him are: 1. The first contract at Clause 1 stated that all plans and specifications for work to be done under this contract are taken to form part of the contract; 2. All work done under this contract must comply with the conditions of the development certificate; 3. The certificate set out a set of architectural and other plans; 4. The builder was bound to build a 36sq house according to specified approved plans.
There is no support for the appellant's contention that the subsequent Letter of Acceptance demonstrates that the first contract, which was found to have been wholly in writing and with no attachments, was not binding on the parties. This is the more so because the contract had been partially performed long before the Letter of Acceptance came into existence.
As stated in Collins v Urban it is necessary for the appellant to persuade us that the evidence: "..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".
The appellant has not established that the existence of the 2017 Letter of Acceptance preponderates so strongly against the conclusion that the 2016 contract was binding on the parties as to require the conclusion to be abandoned. In our view the decision was not affected by any error of fact or which was against the weight of the evidence, nor do sufficient circumstances exist to require us to exercise our discretion to grant leave to appeal.

Grounds 3 to 6 - The Third Contract

The builder contends that a third contract was entered into on 23 September 2017 and that the Senior Member erred when he concluded that it was not binding on the parties. The relevant findings of fact rejecting the third contract are found in the reasons at [50]: "Although I find that the owners did sign the contract on 23 September 2017, I also find that when they did sign it, it was a blank document except for the sections Mr Bhardwaj admits to filling in and that the owners had no intention to be bound by it as they only signed it to appease Mr Mehndiratta and to ensure that the builder continued with the progress of the works. As a result I find that the third contract and its associated documents were not binding on the owners and should not be considered in analysing the contractual relationship between the parties."
Importantly, the Senior Member also concluded that the builder had falsified the price on the third contract when he added the figure "5" before the $400,000, thereby attempting to increase the contract price from $400,000 to $540,000 plus GST.
The Senior Member stated "I accept the [handwriting expert's] evidence that the entry "4000 000/-" on the top line of section 4(a) was altered to read "54000000./-" I infer that it was Mr Mehndiratta or someone else on behalf of the builder who made the alteration as he or the builder was the only person who had the possession of the document and an interest in changing the price".
The appellant submits that the Tribunal erred when it found the builder added the 5 to increase the price after the owners had signed it "being a finding against the weight of evidence". (See amended grounds of appeal filed 17 December 2019 page 60 of the agreed bundle). It is submitted that once the Appeal Panel "is taken to contemporaneous materials and objectively established facts and the apparent logic of events, it will be clear that the decision at first instance cannot stand" (see submissions in reply at [19]).
We are unpersuaded by this ground of appeal and we dismiss it. It was open to the Tribunal below and indeed necessary in the circumstances of this case to analyse the witnesses' evidence and to assess their demeanour. After assessing the witnesses over a course of a 4-day hearing, the Senior Member preferred the owners' evidence to that of the builder. Nowhere in the submissions or the amended grounds of appeal is it submitted that this constitutes an error of law.
We were referred to the well-known authority of Fox v Percy (2003) 214 CLR 118. Referring to the requirements and limitations of an appeal the Court said at [23]: "On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share." [Citations omitted.]
In John Holland Pty Limited v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451, Hammerschlag J warned against placing too much reliance on the spoken words of the parties. His Honour said at [94]: "Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 712; Rejfek v McElroy (1965) 112 CLR 517 at 521; Watson v Foxman (1995) 49 NSWLR 315 at 319." [78] (Emphasis added)
The finding that the third contract was not binding was based, in essence, on a finding of fact that the builder's evidence was unreliable. The Senior Member found the builder not to be a reliable witness and concluded that the builder's conduct in this building project persuaded him that the builder was prepared to do whatever was required to safeguard the builder's financial interest (at [49]). The builder's evidence was found to be unresponsive, self-serving and just not credible (at [14]). The Senior Member rejected Mr Mehndiratta's evidence and decided to accept it only "where the documents and contemporaneous accounts would corroborate it". In addition the Senior Member concluded that the third contract was not binding because none of the variations which the builder claimed necessitated a third contract, were variations properly authorised pursuant to that contract or were not carried out at all. Indeed the appeal against the dismissal of the variations claim was withdrawn by builder.
We find the this ground of appeal must fail in circumstances where the builder admitted that he had placed the 5 in front of the 400000 (see Part D of the agreed bundle page 804). Mr Mehndiratta states: "so I inserted the number '5' in front of 400000 in clause 4(a) - "Contract price, price excluding GST", I then proceeded to fill in the remaining prices and the other parts in front of the homeowners".
To determine whether the third contract was binding on the parties necessitated findings of fact and credit. The Tribunal explained fully how it arrived at "reasonable satisfaction" and why it preferred the owners' evidence. We are not of the view that findings were against the weight of the evidence and dismiss this ground of appeal.
We do not consider that the appellant has identified any grounds which would justify the grant of leave to appeal, nor has the appellant established a "substantial injustice". For these reasons we make the following orders.

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

Amendments 24 February 2020 - typographical error in [31] corrected. 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: 24 February 2020

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Judgment (12 paragraphs)

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Cases Cited (17)