Sedghi v Liew

Notice of Appeal

1. In his Notice of Appeal, the builder's grounds of appeal are stated to be: 'the order is not a fair result for this case the Court dismissed my application for unpaid invoice that explained in court and it had documents the court did not gave any weight to my expert report and my witness'
2. In the section of the Notice of Appeal which was concerned with whether the appellant was seeking leave to appeal on the ground that the Decision was not fair and equitable the builder stated: the Court decision is not fair I was not in good mood during the hearing and senior member H Woods let me leave the hearing and I could not fully support my case and answer to the other party case the court did not gave any weight to my expert report and my witness report the court dismissed my case for unpaid invoices that has documents and two items explained in court and Senior Member H Woods mentioned that these are strong evidence item3 ,5 and in court order 107 to 113,122 to 131 the other party expert prices is extremity above the market price in 2021 before hearing the owner send builder a letter and offered to pay $2000 to settle this case (letter is in attach) with considering that owner owed to builder about $15000 I rejected that offer now according the court decision I have to pay about $17,000 this is logically not fair item 2 rear stair 97 to 106 the contract dose not include handrail as scope of work the stair in plan is 12 steps and we build 12 steps second the price from Mr o'donnel expert is $8779 in the owner file Page 1 exhibit jl-3 there is invoice for cost of this stair $5240.25 The court order have %25 overhead and %10 GST that the owner don't pay overhead and GST I am attaching the calculations of the court order and the amendment that I mentioned above. (spelling and other errors as in original)
3. In that section of the Notice of Appeal which was concerned with whether the appellant was seeking leave to appeal on the ground that the Decision was against the weight of evidence, the builder stated: It is first time that I have appeared in court and (have not any information about how system works in Australian courts. l engaged Stephan May 'My Home Inspection' to prepare expert report he introduce to me by one of engineer I had worked with. Second Mr All Afshar who has also 30 year experience in construction work in Sydney as a builder as wittness because the problem that mr May had on the day of the court he didn't attend the court and this cause the court not give proper weight to his report also in case of Mr Afshar my claim that was unpaid invoice file come from parramatta court to defend against other party I filed affidavit with photos, emails l60 p' (spelling and other errors as in original)

The Decision

1. The Senior Member considered the builder's claim in the sum of $16,048.00 which was based on tax invoices rendered to the owners. The owners agreed that the tax invoices had not been paid. At [61] of the Decision, the builder's claim was described as being in the amount of $15,148.00 after the amount claimed in the final invoice had been reduced by agreement. The individual components of this claim were: 1. $3,400.00 for final contract work invoice; 2. $7,700.00, extra work invoice; and 3. $4,048.00, extra work invoice.
2. The final contract work invoice of $3,400.00 was found in the builder's favour and credited against the amount found for the owners. At [107] - [113] of the Decision the Senior Member provided reasons for rejecting the builder's variation (extra work) claim for $4,048.00. At [122] - [131] the Senior Member provided reasons for rejecting the builder's (extra work) variation claim for $7,700.00.
3. The owners' claim was for defective work. They were successful in obtaining a finding that rectification costs were $20,278.00 which was reduced to $16,878.00 after deduction of the amount of $3,400.00, as referred to above.

Self-represented parties

1. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 ('Prendergast') at [12] the Appeal Panel stated: In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.
2. Such an approach was confirmed in Cominos v Di Rico [2016] NSWCATAP 5 where the Appeal Panel stated at [13]: It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. However, this must be balanced against the obligation to act fairly and impartially.
3. It will be necessary for us to approach the appellant's Notice of Appeal in the way described above.

The nature of an appeal

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section 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 (s 80(2)(b)).

A question of law

1. In Prendergast v Western Murray Irrigation Ltd at [13], without exhaustively listing possible questions of law, an Appeal Panel considered the requirements for establishing a question of law giving rise to an appeal as of right. These include, but are not limited to: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
2. It is important to note that an appeal to the Appeal Panel does not provide a losing party in the Tribunal at first instance with the opportunity to run their case again or have a "second chance": Ryan v BKB Motor Repairs Pty Ltd [2017] NSWCATAP 39 at [10].
3. Likewise, the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states: "an appeal is not an opportunity to have a second go at a hearing". Further, it is not sufficient for an appellant to disagree with the outcome and to contend that there should have been a different outcome: the appellant must demonstrate either that an error was made on a question of law, or that there is a basis upon which leave to appeal should be granted.

The appellant's grounds of appeal

1. The builder was self-represented in the first instance proceedings and in the appeal. English is not his first language. In accordance with what was said in Prendergast and in Cominos v Di Rico we will consider the builder's Notice of Appeal and the documents filed by him in the appeal to discern whether that material indicates that he is raising a question of law or an application for leave to appeal.
2. Having read the builder's written material including the submission that he filed on 24 November 2023 and having heard the builder present his appeal on 27 November 2023 with the assistance of an interpreter, we have come to the view that the appellant raises two issues which may be characterized as an appeal on a question of law. The first issue is whether there was a lack of procedural fairness at the hearing. The second issue is whether the Tribunal Member made a mistake when he exercised his discretion not to give any weight to the builder's experts' evidence.
3. In connection with grounds of appeal that would require leave, we have formed the view that the builder is seeking to utilise the appeal process as an opportunity to run his case again. We will address that later in these Reasons.

The owners' position

1. In their Reply to Appeal, the owners supported the orders made by the Tribunal stating that the Decision was fair and had no errors. They said that that: The tribunal decisions are fair equitable, based on available evidence, and reasons are given in the Judgement.

Error of law - Procedural fairness

1. The builder stated under the heading 'Not fair and equitable': I was not in good mood during the hearing and senior member H Woods let me leave the hearing and I could not fully support my case and answer to the other party case.
2. We accept that if the builder can establish the above facts that may amount to an arguable case that he was denied procedural fairness at the hearing which raises a question of law for which leave is not required.
3. At a directions hearing on 6 October 2023, orders were made for the preparation of the appeal. Order 2(d) required the builder to lodge with the Appeal Registry: If oral reasons were given and or what happened at the hearing at first instance is being relied on by the appellant in the appeal a typed reference of the relevant parts of the hearing together with the sound recording of the entire hearing.
4. The builder did not, as ordered, lodge a typed reference of the relevant parts of the hearing which evidenced his assertion as extracted at [27] together with the sound recording of the entire hearing with the Appeal Registry. Although this matter was raised before us by the builder, without a typed extract of the relevant part of the hearing, or a sound recording of the hearing or the relevant part, the builder has not established the factual foundation for this aspect of his appeal.
5. In Al Bisher v Sabbagh [2021] NSWCATAP 100, the appellants were ordered to file a sound recording of the hearing and if what happened at the hearing was being relied, on a typed copy of the relevant parts. They did file a disc containing a sound recording of a three hour hearing, but otherwise failed to comply with the order.
6. At [15] of the decision the Appeal Panel stated: A contention of procedural unfairness requires a close and careful consideration of what happened at the hearing before the Tribunal.
7. We agree. The same considerations apply in connection with the builder's claim in this appeal which we have stated suggests that he may have been denied procedural fairness.
8. At [18] the Appeal Panel continued: The Appeal Panel cannot fulfil the guiding principle set out in s36(1) of the NCAT Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings if it has to review for itself a lengthy sound recording of the hearing at first instance in circumstances where it has directed a party who is relying on what happened at the hearing to prepare a typed copy of the relevant parts and the oral reasons. Section 36(3) of the NCAT Act makes it plain that the parties to proceedings in the Tribunal have a duty to co-operate with the Tribunal and to comply with directions and orders of the Tribunal to give effect to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
9. We understand the builder to be stating that he was denied procedural fairness because he was allowed to leave the hearing and as a result he was unable to fully support his case and answer the owners' case. He has not as directed provided a recording of what occurred at the hearing, or provided a typed transcript referring to the relevant parts of the hearing which he relies on. In these circumstances, the builder has not complied with s 36(3) of the NCAT Act in the same manner as referred to in the extract above. Because of the builder's failure to supply a typed transcript of the relevant parts of the hearing, or a sound recording of the hearing, we are unable to determine whether he was denied procedural fairness in the way that he asserts. Because of this, we reject the builder's ground of appeal that he was denied procedural fairness by reason of the matters referred to at [27] above.

No weight to expert report and witnesses

1. One Ground of Appeal raised by the builder was that the Tribunal did not give any weight to his experts' report or his witness. The appellant relied on a report of Mr Stephen May and a letter from Mr A Afshar.
2. The Appeal Panel in Lehner v The Owners - Strata Plan No 65870 [2023] NSWCATAP 102 considered, among other things, the position where a possible error concerning the exercise of discretion was present. The Appeal Panel stated at [12]: A decision made in the exercise of a discretion, which includes a decision to award costs, can only be overturned in limited circumstances on a question of law: House v The King (1936) 55 CLR 499 (House v The King) at 505-506.
3. Similarly, a decision made in the exercise of a discretion about the weight to be given to evidence can only be overturned on a question of law. What is required to be demonstrated is error in the sense explained in House v The King, where the High Court stated at 504-505: [i]t is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed … It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
4. The Senior Member considered the builder's witnesses and gave detailed reasons why he did not give their evidence any weight at [65] - [76] of the Decision as follows: 65 On 8 August 2022 the Tribunal ordered that Expert evidence must comply with NCAT procedure of direction number 3 for expert evidence which can be found on the NCAT website. 66 On 8 September 2022 the Tribunal ordered that the parties experts shall consult and provide the Tribunal with a copy of a joint Scott Schedule setting out all agreed points and all remaining points of difference and the parties must bring along their experts for cross examination. 67 The homeowners submit that no weight should be given to the report of Stephen May, or the signed letter of Ali Afshar of AFA Design & Construction dated 2 August 2022. 68 Dealing firstly with the report of Mr may, although the report does not refer to the Expert Witness Code of Conduct it does say, "This report is provided in accordance with the legislation required as a building expert." If the failure to comply with the Tribunals direction regarding expert reports was the only issue with the report, I may have been inclined to give the report appropriate weight. 69 For the reasons set out below, however, in my view, it is not appropriate to give the report any weight. 70 First, the index to the report indicates that it is of 88 pages. The Tribunal has only been provided with pages 1 through to 68. The Tribunal has not been provided with the response to scott schedule at pages 69 to 82, compliance with relevant legislation at page 83, conclusion at page 84, annexure list at page 85 and list of applications at page 86. Nor have any annexures which one might assume were identified in the annexure list been provided. 72 Second, the report is not signed. 72 Third, Mr May did not attend the hearing to be cross-examined or be available to give evidence concurrently with the homeowners expert. 73 Fourth, as noted above, the report does not comply with the Expert Witness Code of Conduct which the Tribunal directed that it must. 74 Fifth, the report does not contain any evidence of Mr May's training and experience. 75 Sixth, the builder's submissions at pages 8 and 9 of his written submissions, do not, in my view, provide a reason or explanation as to why for the above reasons I should place any weight on Mr May's report and in fact confirm that the builder removed pages 69 to 88 of the report and has himself completed the scott schedule. 76 In relation to the undated letter dated 2 August 2022 from a Mr Ali Afshar, I note that the letter is not addressed to the Tribunal, does not refer to the Expert Witness Code of Conduct, does not indicate that the writer is aware that the letter is to be used as evidence in Tribunal proceedings, is not signed, and does not establish on its face that the writer is qualified as an expert. For those reasons, I also do not place any weight on the letter from a Mr Ali Afshar of AFA Design & Construction.'
5. Section 38(2) of the NCAT Act states that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
6. We find that the detailed reasons provided by the Senior Member adequately identify the relevant factors which he relied on, in the exercise of his discretion, in not giving any weight to the report from Mr Stephen May or the letter from Mr Afshar. Those factors were: 1. the version of Mr May's report filed in the Tribunal was not the complete version. Importantly, the response to the owners scott schedule was not provided. Nor was the conclusion to the report or the annexure list or the annexures; 2. Mr May's report was not signed; 3. Mr May did not attend the hearing to be cross-examined or to give concurrent evidence with the owners' expert; 4. Mr May's report did not comply with the Tribunal's Expert Witness Code of Conduct; 5. Mr May's report did not contain evidence of his training and experience; 6. the response to the owners' Scott Schedule was not completed by Mr May but was completed by the builder; 7. Mr Afshar's letter does not refer to the Tribunal's Expert Witness Code of Conduct and does not establish that Mr Afshar is qualified as an expert.
7. As regards the fact that Mr May did not attend the hearing, in a document filed on 29 September 2023 in the builder's stay application, he attached orders made on 8 September 2022 in a directions hearing. Albeit that a hearing date of 13 December was referred to, the Tribunal made the following order, among others: AND THE PARTIES MUST BRING ALONG THEIR EXPERTS FOR CROSS EXAMINATION.
8. We find that by the above order the Tribunal made it clear that the parties were required to have their expert attend the hearing.
9. Despite not being bound by the rules of evidence or the requirements of the Evidence Act 1995 (NSW), the Senior Member was entitled to have regard to the common law principle that it is necessary for an expert witness to have sufficient knowledge and experience to entitle him or her to be held out as an expert who may assist the court. In Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 Lord Russell said at 42: The opinion expressed by an expert witness in any branch of technical science depends for its effect on, inter alia, his qualifications, skill and experience in that science.
10. The authority cited above makes it clear that an expert's opinion will depend on her or his qualifications, skill and experience in the area which the opinion relates to. It follows that if the expert does not expressly state her qualifications skill and experience so that the Tribunal can be satisfied that the witness does possess the necessary qualifications, skill and experience, there will be no reason why her opinion should be accepted.
11. Having regard to the reasons that he provided, we do not discern any error made by the Senior Member in the sense described by the High Court in House v The King when for the reasons he gave, he exercised his discretion not to give the evidence of Mr May or Mr Afshar any weight. The fact that neither of the builder's witnesses provided evidence of their training and experience was in our view a powerful reason which justified the Senior Member not to give their evidence any weight.
12. We conclude therefore in relation to the two questions of law raised by the builder that the Senior Member made no error. Accordingly, the appeal is not allowed on either of these bases.

Application for leave to appeal

1. As the Decision is a decision of the Tribunal in the Consumer and Commercial Division, the Appeal Panel may only grant leave to appeal where it is satisfied the appellant may have suffered a substantial miscarriage of justice because: 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). (see NCAT Act, cl 12 Sch 4,)
2. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel considered among other things, an application for leave to appeal under cl 12(a) of Sch 4 of the NCAT Act. In connection with the requirement that the appellant may have suffered a 'substantial miscarriage of justice' the Appeal Panel stated at [71]: From this passage, it 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.
3. At [76] the Appeal Panel stated: 'Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) 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.'
4. In connection with one ground on which the builder seeks leave to appeal, namely the decision of the Tribunal was not fair and equitable, the Appeal Panel in Collins v Urban at [77(1)] explained this ground as being: If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable".
5. In connection with the other ground on which builder seeks leave to appeal, namely because the decision of the Tribunal Member was against the weight of evidence, the Appeal Panel in Collins v Urban at [77(2)] explained this ground for leave to appeal in the following way: The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality 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.
6. Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of cl 12(1) of Sch.4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [31].
7. At [5] above we extracted section 6Bi of the builder's Notice of Appeal in which he seeks leave to appeal because the Decision was not fair and equitable. We have dealt with his grounds: I was not in good mood during the hearing and senior member H Woods let me leave the hearing and I could not fully support my case and answer to the other party case the court did not gave any weight to my expert report and my witness report as raising questions of law, in respect of which we have discerned no error by the Senior Member.
8. We have referred to the decision in Collins v Urban at [77(1)] where this ground was explained as being: If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable".
9. This explanation of the fair and equitable ground for leave to appeal has been widely accepted in the Tribunal. In Dhorajiwala PCT Pty Ltd v Peacock [2022] NSWCATAP 313 at [39] the Appeal Panel stated: We are unable to identify any basis for the assertion that the decision is not fair and equitable, noting that whether a decision was not fair and equitable will involve a consideration of whether there has been an unfairness in the way the proceedings have been conducted or some other denial of procedural fairness. The landlord has not identified anything about the conduct of the proceedings which would lead us to the conclusion that the decision was not fair or equitable.
10. Section 6Bi of the builder's Notice of Appeal, apart from the ground referred to above at [54] does not in our view raise any matter that goes to the way in which the proceedings were conducted or any other denial of procedural fairness. The matters raised go to the builder's expert evidence, which we have dealt with, the owners' expert, the scope of the contract work and the calculations of the owners' damages. These matters indicate an approach which would lead to the builder having a second chance at running his case which as we have stated is not permissible on an appeal.
11. We find that the builder's Notice of Appeal and his submissions in the appeal do not establish a basis for finding that the Decision was not fair and equitable. Leave to appeal pursuant to cl 12(a) Sch 4 of the NCAT Act is refused.
12. Section 6Biii of the builder's Notice of Appeal sets out the basis upon which he seeks leave to appeal on the basis that Decision was against the weight of evidence. At [6] we have extracted what the builder states in support of an application for leave under cl 12(b) Sch of the NCAT Act, namely that the Decision was against the weight of evidence. We find that the maters raised by the builder at 6Biii of his Notice of Appeal either go to him having a second chance at running his case (the first paragraph), his experts (second, third and fourth paragraphs) which we have dealt with and in the final paragraph, a submission about his claim and his evidence.
13. We find that the builder has not established that the evidence at first instance in its totality preponderated so strongly against the conclusion in the Senior Member's Decision that it could be said that the conclusion was not one that a reasonable Tribunal Member could reach.
14. We refuse leave to appeal pursuant to cl 12(b) of Sch 4 of the NCAT Act.

Communication with the Appeal Panel after the hearing

1. On 29 November 2023, after the appeal hearing was finalised, the builder sent an email to the Appeal Panel attaching a one page submission. We have decided not to take this submission into account on the basis that the parties had the opportunity to make all the submissions they thought relevant at the hearing. The builder did not apply for and was not granted leave to file additional submissions after the hearing was concluded.
2. As Mason J noted in Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 at [29]: The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.
3. In Murphy v Trustees of Catholic Aged Care Sydney [2019] NSWCATAP 37, the Appeal Panel at [106] - [110] explained in detail why submissions are not accepted after the hearing has been concluded. It is sufficient for us to set out what was stated at [109]: See, too, the powerful guidance of a unanimous Court of Appeal in Bale v Mills [2011] NSWCA 226 at [57] to [61], which we relevantly paraphrase as follows: ● the High Court, intermediate courts of appeal and other courts have deprecated in strong terms the filing of material after an appeal without leave being given; ● not only have the parties and their legal representatives no right (whether they agree among themselves to do it or not) to place before the court (or a tribunal) without prior leave further material after an appeal has been heard, it is wrong. It undermines and derogates from the principle of the open administration of justice; ● the consequence of this is not only that sending submissions without leave to the court (here the Appeal Panel) is wrong, but also the court (here the Appeal Panel) may and generally will ignore what has been sent.
4. We agree with what was said at [106] - [110] in Murphy v Trustees of Catholic Aged Care Sydney including the extract in the preceding paragraph. On that basis we find that the material sent to the Appeal Panel by the builder after the conclusion of the hearing should not be taken into account.

Orders

1. The Appeal Panel orders: 1. Leave to appeal is refused. 2. The appeal is 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: 16 January 2024