Shivanbodhiselvan v Norwest Gateway Pty Ltd

The member did not apply the law equally.

1. We reject this submission. As the Senior Member carefully explained in his detailed reasons for decision, Mr Shivanbodhiselvan bore the onus of proof and it was up to Mr Shivanbodhiselvan to prove his case on the balance of probabilities. For the reasons given by the Senior Member, he was not satisfied on the evidence before him that Mr Shivanbodhiselvan had done so.

The member did not conduct the proceedings in a manner that is patient and courteous.

1. We also reject this submission. While the Senior Member did sound somewhat impatient on a couple of occasions during the course of the hearing, this was because, despite his clear directions to each of Mr Shivanbodhiselvan and Mr Timbol not to interrupt each other, they continued to do so. We see nothing untoward or unacceptable in the conduct of the Senior Member.

The member was ill prepared to conduct the hearing as he did not have the correct telephone number for the Respondent.

1. This submission is misconceived and is rejected. It is apparent that shortly before the hearing Norwest provided a different contact telephone number for the Senior Member to contact Mr Timbol.

The member made an error of law by quoting Port Melbourne Authority v Anshun Pty Ltd (1981) HCA 45 as Issue Estoppel does not apply to me, as the topic was raised twice with NCAT during previous proceedings.

1. We turn now to ground [6], which does not relate to procedural fairness, but does raise an error of law; namely that the Tribunal applied an incorrect principle of law.
2. In the Decision the Tribunal stated: 28. The eighth reason why this ground must be rejected is that it could have and should have been raised in the earlier proceedings, a principle explained by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45. Simply stated, that principle operates to prevent multiple, successive legal proceedings in respect of the same subject matter, namely alleged defects in building work [carried] out by [Norwest for Mr Shivanbodhiselvan]. 29. It is of assistance to set out a chronology of the relevant events, established by the evidence: Nov 18 Roof construction completed 12 Dec 10 Lock-up achieved Jan 19 Heavy rain but no evidence of water penetration Mar 10 Ceiling completed 24 Apr 20 Completion of work, applicant says he referred to "a possible roof leak" 28 8ep 20 At the first hearing of the previous application, that topic was raised 30 Sep 20 Orders made following that first hearing 27 Jan 21 Those orders were set aside 22 May 21 An email was sent by the applicant, suggesting a roof leak 18 Jun 21 Second hearing (rehearing) of previous application (decision reserved) 23 Jun 21 An email was sent to the applicant quoting a response from Mr Timbol. 30 The fact that [Mr Shivanbodhiselvan] was aware of a possible roof leak in April 2020 suggests that topic should have been included in his previous application. It is clear, from the inclusion of pages from a building inspection report by Houspect, that [Mr Shivanbodhiselvan] had an expert consider alleged defects in the building work carried out by [Norwest]. [Mr Shivanbodhiselvan] should have requested the author of that report to consider the roof. Indeed, if the author of that report was asked to consider defects in the roof, then there does not appear to be any explanation of why the roof was not included in that report.
3. We see no substance in Mr Shivanbodhiselvan's submission that issue estoppel does not apply to him. And his submission that the topic was raised twice with Tribunal during previous proceedings in fact undermines rather than supports his argument.
4. There is no reason why the principle of "Anshun estoppel" should not have been applied by the Tribunal. Indeed, it could be argued that the Member would have erred in law had he not applied it.
5. This ground of appeal must fail.

Should leave be granted in relation to any other error?

1. The other errors identified by Mr Shivanbodhiselvan, for which leave is required, are that the Decision was not fair and equitable, against the weight of the evidence and that there is significant new evidence available that was not available at the time of the hearing.

The Decision was not fair and equitable

1. As noted above, Mr Shivanbodhiselvan submitted that the Decision was not fair and equitable as: 1. the photos he submitted "were not allowed" as they did not have dates on them, "but the undated photos submitted by Norwest were allowed"; 2. the Decision was made on "assumptions and theories, not on evidence and facts"; 3. the Tribunal relied wholly on evidence and submissions provided by Norwest, not from independent witnesses, in circumstances where Mr Shivanbodhiselvan provided a report of an independent roof plumber.
2. We find no substance in any of these submissions.
3. As to (1), in relation to Mr Shivanbodhiselvan's photos, the Senior Member found that: 23. Thirdly, the photos of the roof which were included in [Mr Shivanbodhiselvan's] evidence (A39-62), which do not indicate when they were taken, and which are accompanied by Mr Shivanbodhiselvan's] comments, do not reveal matters which are linked to the evidence of water penetration or any adverse consequence other than the cosmetic appearance of the roof when view by a person standing on that roof. A number of those photos show dents, but such dents are likely to have been caused by walking on the roof away from the line of screws. However, a there is a photo which suggests the person taking the photos did that (A45), such dents cannot be attributed to the respondent.
4. Thus it is not correct to submit that the photos were rejected (not allowed) because they were undated. They were not rejected at all; they were considered by the Senior Member who found them not to be of probative value for the totality of the reasons expressed at [23] of the Decision, which included but was not limited to the photos being undated.
5. Nor was it correct as Mr Shivanbodhiselvan submitted that the Tribunal accepted that the undated photos submitted by Norwest were accepted ("allowed") by the Tribunal. The Tribunal did no such thing.
6. As to (2), the submission that the Decision was made on "assumptions and theories, not on evidence and facts", we reject that submission. For the very careful and detailed reasons set out in the Decision, the Tribunal did not find that Mr Shivanbodhiselvan had proved his case on the balance of probabilities. As the Appeal Panel has remarked on many occasions: A court or tribunal is informed and persuaded only by the presentation of evidence. Evidence is material which tends to persuade the court or tribunal of the truth or probability of the facts being alleged. Evidence may be photograph[ic], documentary or testimonial. But it will only succeed in persuading the tribunal if it appears as being truthful, reliable and cogent. In civil cases the standard or proof depends on the balance (or preponderance) of probabilities. This simply means that a party must prove that their case is more likely than not to be true. If the scales tip in favour of the party, however slight, they have proved their case. But if the probabilities are equal, they have failed to prove their case. ...
7. See Andy and Patrick Floor Covering Pty Ltd t/as Silver Trading Timber Floor v Li [2018] NSWCATAP 172 at [40]; Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [18]; Mason v Hyland [2018] NSWCATAP 203 at [23]

The Decision was against the weight of the evidence

1. Mr Shivanbodhiselvan says that the Decision was against the weight of the evidence, and that the Tribunal should have given more weight to "Reports and Quotations" of third parties.
2. This was a reference to a quotation of Sydney Prestige Metal Roofing Pty Ltd dated 13 May 2021 (in the amount of $17,760 in relation to replacement of the roof) and a quotation of SPS Property Maintenance dated 21 May 2021 (in the amount of $2,893 in relation to replacement of the ceiling).
3. There is no substance in this submission. First of all, both quotations were listed in the evidence of the appellant identified by the Senior Member in the Decision (see [9]) and we infer that he considered those documents in coming to his decision. As to the quotation of 13 May 2021, this was specifically considered by the Senior Member at [22] as follows: Secondly, although there was a quotation dated 13 May 2021 for the removal and replacement of the roof(A63)which suggested the roof needed to be replaced, that evidence is not persuasive because(1) there is nothing to indicate the author, (2) there is nothing to indicate the author's qualifications and/or experience, (3)there is no reference to Procedural Direction 3,(4)the "pictures provided" are not identified,(5)the opinion is expressed by someone who has an incentive to find defects because it is contained in a quotation for $21,736, and (6)the amount shown in the quotation appears to be excessive having regard to the cost of the roofing materials provided by the respondent (R11).
4. As to the quotation for the replacement of the ceiling, we infer that the Senior Member did not consider it necessary to consider this evidence in writing his reasons in circumstances where he found at [24] that: … the photos taken inside the premises do not provide adequate support for the applicant's case. The area of the ceiling to which the applicant directed the Tribunal's attention (A74) showed mould on the interior surface, but no photo was provided of the other side of that plasterboard to show the cause of that mould was external not internal, despite it being readily accessible as it was close to the manhole (R19). There were two other two photos taken inside the premises. The photo at A72 shows a crack in a cornice but there is no indication of how that has been caused by an alleged defect in the roof. The photo at A73 is accompanied by a description which suggests it shows water leaking from the roof into the garage but that is not clear from the photo and is not the subject of any expert evidence.
5. As for a report of an independent roof plumber, there was no such report, only the quotation referred above.

Significant new evidence now available that was not reasonably available at the time of the hearing.

1. Mr Shivanbodhiselvan says that at a directions hearing on 19 August 2021, he was not ordered to provide a "witness report of a Scott schedule" and, had he been ordered to do so, he would have.
2. True it is that in the directions of 19 August 2021, only Norwest was ordered to send to Mr Shivanbodhiselvan and the Tribunal a copy of all documents including expert reports, witness statements, Scott Schedule, on which it intended to rely at the hearing by 2 September 2021.
3. But that was because on 29 July 2021 Mr Shivanbodhiselvan was directed to: 1. … give to the respondent and send to the Tribunal any documents on which they intend to rely within 14 days from 29 July 2021. … 3. Documents MUST be given to the Tribunal in hard copy (paper form). The documents must be secured in a bundle, without plastic sleeves, with consecutive page numbers on each page from beginning to end. … Non-tenancy documents include - contracts, agreements, quotes, receipts, bills, written statements made by you and your witnesses and reports from experts or qualified specialists. (emphasis added)
4. In any event, there was no new evidence available at the appeal hearing (and which was not before the Tribunal) on which Mr Shivanbodhiselvan now wished to rely.
5. This ground of appeal also fails.

Conclusion

1. We have considered each of Mr Shivanbodhiselvan's grounds of appeal which are errors other than errors of law. Applying the principles in Collins v Urban , we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result such that a grant of leave is warranted.

Orders

1. The Appeal Panel orders: 1. To the extent that the appeal raises errors of law, the appeal is dismissed. 2. To the extent that the appeal raises errors other than errors of law, leave to appeal is refused.

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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: 03 February 2022