Sanna Construction Pty Limited v Kelly

1. On appeal, Mr Corrada Sanna appeared for himself and the Builder. He had been joined as a party to the proceedings below by order dated 10 January 2024. He was joined as a party to this appeal by order dated 9 October 2024.
2. At the hearing of the appeal, he applied for an adjournment in order to obtain legal advice and representation. Mr Sanna also referred to the recent death of his nephew. His application was opposed. It was heard and dismissed, having regard to the principles summarised in Touma v Colantuono [2021] NSWCATAP 152 at [56]- [59] and the guiding principle in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW). We also had regard to the following matters. The appellants have had since about 7 August 2024 to consider the need to obtain legal advice and representation. Furthermore, they were granted leave to be legally represented in the directions for the conduct of the appeal made on 9 October 2024. They were also granted an extension of time in which to provide their submissions on the appeal on 1 November 2024 on the basis that they said they had experienced difficulties in obtaining legal assistance and had only just been able to obtain legal guidance. Mr Sanna said that he continued to have difficulties in obtaining legal assistance but provided no details or supporting evidence of the problems he was facing. Mr Sanna also had no satisfactory explanation for leaving it until the hearing of the appeal to make the adjournment application in circumstances where the respondent and her solicitor had travelled from the Central Coast to Sydney for the hearing that day. Mr Hughes, solicitor, who appeared for the respondent indicated that his costs thrown away by any adjournment would be in the order of $3000. Mr Sanna did not accept that he should pay any such amount as a condition of an adjournment.
3. In its Notice of Appeal, the Builder seeks leave to appeal as a result of the following alleged errors made by the Tribunal below:

1. Before determining each ground of appeal, it is necessary for this Panel to consider whether a grant of leave is available by reason that the appellant 'may have suffered a substantial miscarriage of justice' for any of the three foregoing reasons and, if so, whether leave is appropriate: Collins v Urban [2014] NSWCATAP 17 at [81].
2. In summary, a decision will be 'not fair and equitable' if there has been a denial of procedural fairness: Collins at [77].
3. It will be against the weight of the evidence:

'(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: