Saurine v Coral Homes Qld Pty Ltd

NCAT Appeal Panel|2015-07-22

Solicitors: File Number(s): AP 15/09606 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 15 January 2015 Before: K Holwell, General Member File Number(s): HB 14/40617

REASONs

In this appeal the appellant, Mr Robert Saurine, seeks and extension of time to appeal from a decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) of 27 November 2014.
In its decision, the Tribunal dismissed Mr Saurine's application against the respondent Coral Homes Qld Pty Ltd (Coral Homes).
For the reasons that follow, we consider that Mr Saurine's application for an extension of time should be allowed but the appeal should be dismissed.

Notice of Appeal

Mr Saurine seeks to appeal the decision of Tribunal. His grounds of appeal are stated in section 11B of his Notice of Appeal as follows: 1. Attached per complaint. 2. Failure to provide legal reasons for collateral agreement. 3. Failure to discuss precedent on defective design. 4. Taking respondants (sic - respondent's) information, even though evidence of lying under oath 5. Member shown [sic - showed] bias, as per complaint. 6. Failure to acknowledge correct measurements.
The Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) sets out the basis upon which appeals from decisions of the Consumer and Commercial Division may be brought. Section 80(2)(b) states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds.

Extension of time to appeal

Mr Saurine acknowledges that he requires an extension of time to appeal in that he lodged the Notice of Appeal on 26 February 2015, 30 days after he was notified of the reasons for decision. This is outside the 28 days mandated by r 25 (4)(c) of the Civil and Administrative Rules 2014. Section 41 of the NCAT Act provides that the Tribunal may extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
The principles to be applied on applications to extend time to appeal were considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18]-[22]. Relevantly at [22] the Appeal Panel said: 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].
In this case, the length of delay was very short - only two days. The explanation given is that, in the complaint lodged by the appellant on 4 February, namely within the prescribed 28 day period, he had requested the matter be dealt with quickly as he understood there was a time limit applicable. In the Notice of Appeal, the appellant states in section 13 that he was only notified on the day he lodged the Notice of Appeal that he needed to lodge that Notice and seek an extension of time. He said: " An extension is requested how (sic) I have completion (sic) of the investigation into my complaint of misconduct of the member, for use in the appeal should one be necessary".
It seems to us that, even though this explanation evidences a misunderstanding of the process, in that the appellant appears to have thought the complaint process would stop the time for appeal running, it is a satisfactory explanation.
In so far as the prospects of success are concerned, whilst we have decided to dismiss the appeal for the reasons outlined below, we do think there were some matters raised in the complaint and Notice of Appeal serious enough to warrant our consideration. For these reasons, and, having regard to the fact that there is no prejudice to the respondent, we will grant to the appellant an extension of time to file the Notice of Appeal to 26 February 2015.

Appeal on a question of law

The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered the requirements for establishing an "error of law" giving rise to an appeal as of right and noted at [11] that, in circumstances where appellants are not legally represented, it is apposite to approach the issue by looking at the grounds of appeal generally.
There appears to be two bases on which Mr Saurine submits that an error has occurred which amounts to an error of law. The first is the alleged bias of the member constituting the Tribunal. The second is a misapprehension of the principles of the law of agency. We shall consider each in turn.

Bias

Bias can be actual or apprehended: Bogoevski v Stricklands [2015] NSWCATAP 133 at [110]. Mr Saurine has not articulated whether his claim is one of actual bias or apprehended bias. Claims of actual bias are rarely made, and even more rarely upheld. Actual bias usually, but not universally, contemplates an "interest" (whether financial or otherwise) by the judicial officer (in this case the Tribunal member) in the outcome of the proceedings. No such claim is made in this appeal. In the circumstances, we do accept that the member was motivated by actual bias in the hearing and determination of Mr Saurine's application.
What Mr Saurine appears to be suggesting is apprehended bias, in the sense of pre-judgment by the member of his application, arising of a result of the member's remarks during a hearing preceding his own application. Such matters are usually demonstrated by providing a transcript of the judicial officer's remarks, or, at the very least, the actual sound recording of the proceedings. Mr Saurine has not provided either.
The relevant principles in determining whether there is apprehended bias and how they are to be applied were explained by the High Court of Australia in Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6], where the High Court stated: "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that a tribunal be independent and impartial.
Mr Saurine appears to be suggesting that the reasoning of member in his written reasons illustrates (apprehended) bias. We do not agree. Mr Saurine also appears to be suggesting the member came to conclusions that were not reasonably available to him, or otherwise against the weight of the evidence, but this does not amount to apprehended or ostensible bias. In any event, Mr Saurine alleges that the conduct of the member in the preceding matter demonstrated the "member's bias to applicants without even hearing the case". As he was the applicant, it is unclear how such conduct, even if it occurred, could amount to bias against him.

Agency

The second basis on which it may be considered that Mr Saurine is suggesting that the Tribunal made an error of law is the claim that the Tribunal "must not understand the legality of Agency Law" in reaching his finding that there was no collateral contract. Mr Saurine submits that: The employee . . . went through the contracts and discussed the points with me. The employee assured me they have built thousands of homes and hundreds of this design and there would be "plenty of room" for access. This is clearly a collateral contract and has now reconfirmed this with a solicitor".
Mr Saurine's submission relates to par [13] of the Tribunal's reasons: I found there was no collateral contract. A collateral contract has to be made with [Coral Homes]. It cannot be made with an employee of [Coral Homes]. The exchange of emails about matters relating to the construction does not create a contact.
We do not consider the statement that a collateral contact cannot be made with an employee of a contracting party is, as a general statement of principle, correct. Whether or not an employee can bind the employer depends on the particular factual circumstances.
The difficulty Mr Saurine faces is that, in this case, the Tribunal has made certain findings which mean, even if it was wrong on its conclusion with respect to the agency issue, unless those findings can be overturned, the error would have no impact on the decision. The Tribunal formed a view that on the evidence before it having regard to the conflicting evidence about any oral variation and as there was no written variation with respect to the change of the shower door, that it could not be satisfied that there was any written variation.
Further, Mr Saurine's submission is a bare assertion, unsupported by evidence of what transpired before the Tribunal, in the form of a transcript of the hearing or a sound recording, or any description of, or the evidence before, the Tribunal at the time of the hearing. In the absence of any evidence which enables the Appeal Panel to assess whether or not the Tribunal erred in reaching its conclusion, we must reject this ground of appeal.

Conclusion - errors of law

The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered the requirements for establishing an "error of law" giving rise to an appeal as of right. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast referred at [13] to the following as constituting errors 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 has been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account a relevant (mandatory) consideration. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision was so unreasonable that no reasonable decision-maker would have made it.
In our view, there is nothing in the appellant's Notice of Appeal or submissions which suggest that there is an arguable question of law on any of the grounds raised by him. Having indicated in the Notice of Appeal that he was asking for leave to appeal, it is arguable that the appellant has recognized that leave to appeal is necessary. In our view, Mr Saurine requires leave of the Appeal Panel for his appeal to be heard.

Appeal requiring leave

Under Schedule 4, cl 12 of the NCAT Act, appeals from decisions of the Consumer and Commercial Division, other than on questions of law, can only be brought if the Tribunal is satisfied that the appellant may have suffered a substantial miscarriage of justice for various reasons: "12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
We note that in Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized at [71] and [79] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred."
The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel of the Tribunal conducted a review of the relevant cases at [65]-[79]. 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.
However, as was explained in Pholi v Wearne [2014] NSWCATAP 78 at [32]: Even if the appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.

Mr Saurine's documents

In addition to the documents already referred to, Mr Saurine filed with the Tribunal a bundle of materials. Those materials include a chronology, written submissions, emails between him and Coral Homes and copies of plans. He has not filed a copy of the relevant contract, or any of the written variations to that contract. This makes his submissions on appeal very difficult to understand.

Coral Homes' documents

Coral Homes filed a bundle of materials for consideration by the Appeal Panel. Very helpfully, these documents included the contract, which was signed on 12 February 2013, and eight post contract variations dated from 21 February to 27 June 2013, and the certificate of practical completion dated 1 October 2013.
Also included is an email chain between Mr Saurine and Mr Waide, a sales consultant of Coral Homes, dated 19 referred to above. Coral Homes submits that the only reference Mr Saurine ever made to any disability appeared in an email of 20 November 2012 at 11.33AM. We shall refer to this below.
The respondent submits that Mr Saurine failed to provide any requirements or supply by way of any report provided by a physiotherapist or other medical adviser, issues that needed to be considered in the design of his home, and it serviceability, to suit what the respondent describes as Mr Saurine's "so-called need for a shower chair". The respondent further submits that Mr Saurine was: Aware of the home design, by visiting Coral Homes display home . . .where the size of the showers are demonstrated. The shoers also show the hob that [Mr Saurine] would need to step over to enter the shower. No changes to [Mr Saurine's] plan were registered regarding access to the shower. We refer to the post contract variation no. 2 dated 21 February 2013 . . . [it] clearly included a tiled hob to the front of the bath only and was signed by [Mr Saurine] on 21 February 2013 . . . The handing [?] of the shower door was changed after installation following discussions between [Mr Saurine] and [Coral Homes] on improving access into the shoer compartment. Please note no plan change was issued and no variation was provided for this change.

Decision not fair and equitable

Mr Saurine has not claimed in his Notice of Appeal that he considers that the decision of the Tribunal was not fair and equitable. However, as noted above, Mr Saurine also submits in his complaint attached to the Notice of Appeal that the Tribunal made a number of errors in its findings.
The submissions of Mr Saurine (undated, but page numbered "B /1-1) explain that: This hearing is about my requirements of having a properly functioning shower, which is especially important as a disabled person with respect to my ensuite bathroom. . . . I spoke with Gerry at length about my special requirements and modified the Hamilton design to aid me in my disability by doing things such as decreasing the patio step . . . and ensuring entrance concrete was graded rather stepped; how when a wheel chair will be required the house. We also discussed on numerous occasions that the build was delayed whilst I waited on a Total & permanent Disability payment. When I brought up the issues with not being able to use the shower with Coral Home's Rebecca French she advised that "if I advised them I was disabled, mentioned that there was an issue with access of the shower they would have ensured the door would be able to be fully opened". Despite the fact that all doors should be able to be fully opened, I provided her with an email showing I had discussed my disability with them. . . . Also I did point out to Rebecca French that in the contract plans that I wouldn't be able to access the shower as per the document in an email I sent to Gerry Waide. This is attached, as having a functioning bathroom was on the top of my concerns and was done at contract time, as the shower is often the only help I can get to aid my condition. Gerry advised me Coral Homes have built thousands of homes and there will be plenty of room when built.
Attached to those submissions, which appear to be submissions made to the Tribunal below (given that they are titled "File No: HB 14/40617"), is an email chain between Mr Saurine and Mr Gerry Waide. The chain commences on 17 November 2012 1.16PM and concludes at 20 November 2012 at 11.50AM. The chain commences with advice from Mr Waide to Mr Saurine that the building guidelines for his lot state that the building cannot be within four metres of the rear boundary. Mr Waide states that (the pans for Mr Waide's home) situate the house one metre from the rear and that "We can ask for exemptions, please consider before buying block".
The email chain continues, with communications about the positioning of the house, changes to the plans, financing and other variations. In what the respondent says is the only reference Mr Saurine made to any disability, in the email of 20 November 2012 at 11.33AM Mr Saurine writes: I have [rung] the council and currently waiting on a return call from a planner. I am more than happy for you to seek indication as well. I was thinking they may be more likely if I put it as a request under humanitarian grounds, as I am legally disabled due to issues with my back, to be able to do part-time work [I] need an office at the front which pushes the house back. Not sure if this excuse will help at all, but figure it can't hurt my cause. You have more dealings with the council than I do, so they may be more favourable to you.
Mr Waide's response was sent at 11.50AM on the same day and he wrote: Hi Rob Might leave this with you at the present - with a unique approach. Estate guidelines say 4.0m off rear but Councils standard is normally 1.0m, but I think Ferngrove Estate was approved by State Government with conditions and not local Council. However Council approves BA DA's so it should be their call.
It is to be noted that this email is dated 20 November 2012. However, the documents submitted by Coral Homes, which include the contract and eight written variations, demonstrate that the contract itself was entered into almost three months later on 12 February 2013. The laws of contract dictate that, regardless of the pre-contractual negotiations, the terms of the bargain or agreement between parties is concluded and finalised by the entering into of a written agreement. There is no reference in the written contract to Mr Saurine's disability or to any special requirements or variations because of that disability.
Also included in the materials filed by Mr Saurine is a document titled "Complaints regarding Coral Homes". This too appears to be a document prepared for the Tribunal hearing. This lists nine problems prior to construction of the house and a further 37 once construction had started.
On the very last page of Mr Saurine's documents (page numbered "P / 5-1") he provides submissions which appear to be specifically for the appeal hearing. He lists "points" which he says were "largely ignored" by the Tribunal. In summary Mr Saurine: 1. Submits that he could not have done more as a reasonable person to mitigate his costs. 2. Queries whether "estoppels have taken place". 3. States that the reason why paperwork was not "done" (presumably a reference to a written variation of the contract) was that "I was unsatisfied with the access". 4. Submits Coral Homes installer has advised that the shower door was not installed correctly. 5. Submits that the email of 20 November 2012 demonstrates that he was very concerned about the "excess" [sic - access ] of the shower and that "I was concerned about all the costs and assured all costs caused by Coral [Homes'] mistakes would be worn by them. Which formed a collateral contract; as if these promises weren't made I would not have signed until it was correct".

Decision against the weight of the evidence

Mr Saurine has stated that the decision was against the weight of the evidence. He states in his Notice of Appeal: Per my complaint, I gave precedence in regard to defective design, and collateral contact, where I clearly advised in email I was not prepared to sign contracts unless assured the shower was to have plenty of access. Additional no mention of defective design was acknowledged by member, and used [respondent's] pictures when evidence or [perjury] was provided.
This submission is unsupported by evidence, and not established by the provision of a transcript or sound recording of the hearing before the Tribunal. Further, and in any event, on the material before the Appeal Panel, and which was before the Tribunal, we do not accept that the decision was against the weight of the evidence. It is significant that the Tribunal noted that, as the applicant, Mr Saurine bore the onus of proving his case. It found that he did not do so. Mr Saurine cannot point to any evidence on the appeal which would support his submission that the decision was against the weight of the evidence. We see no error in the Tribunal's reasoning. This ground should be rejected.

Evidence now available

As to evidence being now available that was not reasonably available at the time of the hearing, Mr Saurine states in the Notice of Appeal: I can take additional photos, but on the whole both sides produced the required evidence.
This ground of appeal must also be rejected. Mr Saurine has not advanced any reason why the photos he now proposes to take were not available at the time of the hearing. In any event, he concedes that both he and the respondent produced sufficient evidence to the Tribunal.

Consideration

We return to Mr Saurine's stated grounds of appeal, namely: 1. As per complaint. 2. Failure to provide legal reasons for collateral agreement. 3. Failure to discuss precedent on defective design. 4. Taking respondents information, even though evidence of lying under oath. 5. Member shown [sic - showed] bias, as per complaint. 6. Failure to acknowledge correct measurements.
We shall deal with each in turn and summarise our conclusions. We are not persuaded that Mr Saurine has demonstrated any error of law, or that leave should be granted to appeal in respect of any other matter.
As per complaint. Mr Saurine's complaint document principally relates to two areas. The first is the member's conduct of the hearing and his bias. For the reasons appearing above, we do not consider that the appeal should be allowed, or leave granted, in respect of these matters. The second area is the challenge to a number of factual findings made by the Tribunal in its reasons. These challenges are unsupported by any evidence, save for Mr Saurine's assertions and must be rejected. We have already indicated above that we see no error in the Tribunal's conclusion with respect to the contractual terms and finding that Mr Saurine has not proved his case (particularly with respect to any oral variation of the contract with respect to the shower screen).
Failure to provide legal reasons for collateral agreement. If made out, this error would amount to an error of law. However, the Tribunal clearly gave written reasons for its decision in finding that there was no collateral contract: see pars [13] and [14] of the reasons. While the reasons are brief, it could not be said that the Tribunal failed to provide reasons on this issue. We are not persuaded that there has been an error of law of that this is an issue in respect of which leave to appeal should be granted.
Failure to discuss precedent on defective design. This ground is difficult to understand. It is unsupported by Mr Saurine's documents, save for his assertions. In its terms we are not satisfied that it amounts to an error of law. Nor are we persuaded that this is an issue in respect of which leave to appeal should be granted.
Accepting respondent's information even though lying under oath. This ground is also difficult to follow. It is a serious allegation. However, it seems to us that it is unsupported by any evidence and is simply mere assertion by Mr Saurine. There is no basis on which we could find that the respondent's officers or employees have lied under oath. We would not give leave to appeal on this ground.
Bias. For the reasons set out at pars [18] to [21] above we are not satisfied that Mr Saurine has established this submission. It should be rejected.
Failure to acknowledge correct measurements. This ground is difficult to understand. It is unsupported by Mr Saurine's documents, save for his assertions. In its terms we are not satisfied that it amounts to an error of law. Nor are we persuaded that this is an issue in respect of which leave to appeal should be granted.

Orders

For the above reasons the Appeal Panel orders: 1. Application to extend time to appeal to 26 February 2015 be allowed. 2. Leave to appeal be refused. 3. 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: 22 July 2015

At a glance

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Judgment (17 paragraphs)

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Legislation Cited (1)

Cases Cited (14)

Cited By (6)