The Appellant, Jacques Tannous, agreed to undertake the renovation of two bathrooms in residential premises at Earlwood, in metropolitan Sydney (the Premises). The Premises were owned by the Respondent, Joseph Leedon.
By an application filed in the Consumer and Commercial Division of the Tribunal, Mr Leedon sought an order for the payment of damages arising from the work undertaken by Mr Tannous. Mr Leedon claimed that the renovation work was both defective and remained incomplete. He also claimed that he had been "grossly overcharged" for the work that was performed.
On 23 September 2016, the Tribunal upheld Mr Leedon's claim. As a consequence, Mr Tannous was ordered to pay Mr Leedon $77,100 "immediately". The reasons of the Member for making that order were published that same day (the Reasons).
[2]
Background to the claim
The Premises are both owned and occupied by Mr Leedon who shares them with a Mr Macfarlane. Those Premises comprise a two-storey dwelling having two bathrooms, one located on each floor.
Having determined that he would renovate each bathroom, in January 2016 Mr Leedon sought quotations for that work by advertising his proposed renovations on an internet website known as "HI Pages". That website was identified by him as one providing a facility for tradespeople to quote for work.
Mr Tannous responded to the advertisement. By arrangement with Mr Leedon, he inspected the Premises on 27 January 2016 for the purpose of providing a quote. At the time of his inspection Mr Tannous orally quoted $15,000 to renovate the upstairs bathroom and $7,000 to renovate the downstairs bathroom. Mr Leedon requested a written quote, indicating that he would make a decision after considering a number of quotes that he anticipated receiving.
On 30 January 2016, Mr Leedon received an email from Mr Tannous confirming his oral quotation. The email stated:
"Renovate wall and floor and all the fittings in the bathroom and toilet, install all wall build new shower fix any leaking waterproofing and tiling wall and floor fixing ceiling and painting install all fittings in the bathroom and toilet including plumbing and electrical. I will supply tiling and all the material and all the fitting in the bathroom and the toilet as tiling and fitting like vanity bath tub and shower screen etc. Complete job $15,000. For bathroom downstairs remove shower wall and floor installing all fittings shower screen and painting the hall room and installing all fittings shower screen and vanity etc…$7,000 including all materials like tiles and glue and grout etc…" [sic].
Shortly after receiving that quote, Mr Leedon informed Mr Tannous that his quote was accepted. As a result, Mr Tannous attended the Premises on 12 February 2016 when Mr Leedon paid a cash deposit of $500. Work commenced on 18 February and continued until 19 March 2016.
No formal written contract for performance of the work was entered into between the parties.
In the course of performing work at the Premises, repeated requests for cash payments were made by Mr Tannous. The latter claimed that materials had been "more expensive and the work more extensive" than he had anticipated. On a number of occasions Mr Tannous stated that the cash payment he required was a "final payment", only to be followed by a request some days later for further payment. Following each payment request, Mr Leedon went to his bank, withdrew cash and paid the amount requested. Although concerned by these requests, Mr Leedon thought that work might stop if he did not pay and he "just wanted the work finished". At no time was Mr Leedon provided with any document indicating the basis upon which Mr Tannous sought to vary the agreement to complete the work beyond the quoted figure of $22,000.
When, on 16 March 2016, Mr Tannous requested a further payment, Mr Leedon informed him that he had no more money as his savings had been exhausted. At that time, the work to be performed by Mr Tannous had not been completed, with fixtures including a shower screen, vanity and toilet yet to be provided and installed.
The following day, Mr Tannous stated that he required payment of $6,500 as a "final payment" to complete the work and remove all rubbish. As Mr Leedon could not provide that sum, he requested that Mr Tannous discuss his request with Mr Macfarlane. Following discussion with the latter, Mr Tannous signed a document acknowledging that Mr Leedon had already paid him $67,100 "… and that Jacques has now stated final payment of $6,500 to finish all jobs including painting, electrical, and removal of rubbish". Mr Macfarlane provided Mr Leedon with that sum, by way of loan, which was that day paid to Mr Tannous.
On 18 March, Mr Tannous informed Mr Macfarlane that he required a further $3,500 to pay for the cost of rubbish removal, and, with that, a truck arrived for that purpose. Mr Macfarlane again agreed to advance the sum requested so that the job could be completed. Upon receipt of that payment, Mr Tannous stated that he would return to complete installation of the shower screen, toilet and vanity in the downstairs bathroom.
On 19 March 2016, tradespeople attended the Premises for the purpose of installing the outstanding items. However, they were unable to do so. Mr Tannous, who was also on site, informed Mr Leedon that it would first be necessary to "cut into the wall" to install the pipes for the toilet and vanity before the installation could proceed. That work was not undertaken.
The following day Mr Leedon received a text message from Mr Tannous, repeating the need to cut into a wall for plumbing purposes prior to installation of the outstanding items. When Mr Leedon stated that no further money would be paid for this work, Mr Tannous responded by text stating that he would attend the Premises the following day, that is on 21 March 2016, in order to discuss the matter. In fact, he did not attend the Premises on the 21st and there was no subsequent contact between the parties before Mr Leedon commenced his proceedings in the Tribunal.
In total, Mr Leedon paid Mr Tannous $77,100 for bathroom renovation work at the Premises. That sum included $10,000 ($6500 + $3500) advanced by Mr Macfarlane to Mr Leedon so that payments requested by Mr Tannous could be made.
Prior to commencing proceedings in the Tribunal, Mr Leedon sought assistance from the office of NSW Fair Trading. That office responded by indicating that Mr Leedon could commence proceedings in the Tribunal without its intervention because Mr Tannous was not licensed to carry out the work that was the subject of complaint. While he was licensed as a "wall and floor tiler" at the time the work was carried out, he did not then hold a licence as a builder under the Home Building Act 1989.
[3]
The hearing at first instance
The proceedings below were first listed for a directions hearing on 3 May 2016. At that time both Mr Leedon and Mr Tannous appeared. Directions were made for the filing and service of evidence and the matter given a special fixture for hearing on 11 July 2016. In accordance with that direction, Mr Leedon filed and served a number of documents, including printed copies of the email exchange between him and Mr Tannous, leading to the acceptance of the latter's quote for undertaking work. He also filed a schedule of payments made and receipts for those payments as well as an expert building report prepared by Mr A Capaldi. Mr Tannous filed an expert report prepared by Mr Davis of Bay Property Inspections.
Notwithstanding his appearance at the directions hearing in May and the subsequent filing of the report by Mr Davis, Mr Tannous did not appear at the hearing on 11 July 2016. Having satisfied himself that Mr Tannous had been notified of the hearing date and had been served with the documentary evidence relied upon by Mr Leedon, the Member proceeded to hear the matter in the absence of Mr Tannous. As will become apparent, Mr Tannous accepts that he was aware of the date of hearing before the Tribunal and that he had received the documents filed with the Tribunal by Mr Leedon.
The Member received oral evidence from Mr Leedon as well as the documentary evidence that he had filed, including the expert report of Mr Capaldi. Notwithstanding the absence of Mr Tannous from the hearing, the Member also considered the expert report of Mr Davis.
Having received that evidence, the Member's decision was reserved.
[4]
The decision at first instance
The Decision, delivered on 23 September 2016, is comprehensive. It discusses, at some length, both the facts and applicable legal principles to be applied to those facts, resulting in the order for payment then made.
Our earlier recording of the background facts is taken from the findings recorded in the Decision. Understandably, those findings are not only based upon the oral evidence of Mr Leedon but also upon the documentary evidence that he provided. In terms of the findings made in respect of payments, the documents identified by the Member included not only payment receipts given to Mr Leedon by Mr Tannous but also the document signed by Mr Tannous on 17 March in which he acknowledged having been paid the sum of $67,100 to that date for the work and stating that a further sum of $6,500 was then required to be paid "to finish all jobs".
The Member also considered, in some detail, the expert report prepared by Mr Capaldi. He noted that Mr Capaldi had not only set out his qualifications but also acknowledged "the NCAT Code of Conduct in respect of expert witnesses". Mr Capaldi had inspected the premises on 17 May 2016 and, by reference to a Scott Schedule, identified in detail either defective or incomplete work. In respect of the upstairs bathroom, Mr Capaldi identified and the Member accepted that there were some 19 items of work that fell into either the defective or incomplete category. Without intending to be exhaustive for the purpose of these reasons, those items included:
1. a row of wall tiles that was incomplete;
2. the installation of floor tiles over the original tiles;
3. a light fitting that had not been installed;
4. a waterproof membrane that did not extend to the floor waste;
5. building debris that had been left in waste pipes;
6. the non-alignment of joints in floor tiles; and
7. incomplete painting of ceilings and woodwork.
The cost of rectifying defective work and completing work that was then incomplete was assessed by Mr Capaldi as being $12,574.20.
Mr Capaldi also identified and the Member accepted that there were some 10 items of either incomplete or defective work in the ground floor bathroom. Again, without being exhaustive of the items listed, they included:
1. tiling and installation of toilet, shower screen and tub had not been completed;
2. water damaged asbestos lining to the ceiling had not been removed and replaced;
3. painting of walls was incomplete;
4. floor tile joints were not aligned;
5. floor waterproof membrane did not extend into the floor waste; and
6. floor tiles "have reverse fall away from the floor waste", requiring the area to be retiled.
Mr Capaldi's assessment of the cost of rectifying and completing work in the downstairs bathroom was $15,690.
Further, the Member accepted the evidence of Mr Capaldi that the total cost of rectifying defective work and completing incomplete work in the two bathrooms was $39,463.28. That sum took into account not only the two cost items already mentioned but also what was described as a "builder's margin" of 25%, the cost of home warranty insurance and the payment of goods and services tax.
The Reasons also record at [61] the evidence of Mr Capaldi that Mr Leedon had "grossly overpaid the Respondent for the value of the work performed". Mr Capaldi calculated, and the Member accepted on the basis of his evidence, that taking account of "the reasonable cost of labour and fixtures", the cost of renovating the upstairs bathroom was $18,500 and the cost of renovating the downstairs bathroom was $12,500, yielding a total of $31,000. As Mr Leedon had already paid $77,100, Mr Capaldi asserted that Mr Leedon had overpaid Mr Tannous $46,100 compared to the reasonable cost of carrying out the required renovations.
The Member then turned to consider the expert report of Mr Davis, filed on behalf of Mr Tannous. Mr Davis recorded that he had inspected the premises on 17 June 2016, accompanied by Mr Tannous. Mr Davis had been provided with a copy of Mr Capaldi's report and commented upon each of the items of either defective or incomplete work identified in that report.
The Member records that, in his report, Mr Davis accepted some of the work as being incomplete and defective. That report also recorded, on the instructions of Mr Tannous, that the latter had not been given the opportunity to complete work or rectify defects. In the case of a number of items of incomplete work Mr Davis asserted, upon instructions from Mr Tannous, that those items were "not part of the scope of works". The Member also records that Mr Davis did not express any opinion as to the cost of rectifying defective work.
Having noted that the Tribunal had jurisdiction to entertain the proceedings under s 48K of the Home Building Act, the Member proceeded to identify the relevant legal principles and their application to the facts. Relevantly, he determined at [68] that Mr Tannous had repudiated the agreement reached with Mr Leedon to carry out bathroom renovations at the Premises in that "by refusing to perform work on or about 20 March 2016, the respondent's conduct [evidenced] an intention to no longer be bound by the contract or fulfil it in a manner substantially inconsistent with the respondent's obligations". In support of that proposition he cited the decision of the High Court in Shevill v Builders Licensing Board (1982) 149 CLR 620; [1982] HCA 47. Having made that finding, the Member determined that Mr Leedon was entitled to damages for the cost of rectification of defective work as well as "the cost of completing work that should have been completed by the respondent pursuant to the terms of the contract": at [69].
The Member then turned to consider the issue of overpayment. He noted that although Mr Tannous had demanded payment on a number of occasions during the course of the work, on the basis that the work was "more expensive" or "more complex" than was originally thought, at no time did Mr Tannous seek to explain the basis upon which that work was more expensive or more complex than was in contemplation at the time at which his quote was given. At [71], the Member described the conduct of Mr Leedon in making the payments that he did as displaying "a high degree of gullibility, which the respondent took advantage of".
Having acknowledged that an oral variation of a contract may be sought by a builder and that a home owner may, by words or conduct, accept that variation, the Member determined that a builder's entitlement to obtain payment for the work as so varied, necessarily turns upon the actual knowledge of the home owner that the extra work was being done. The Member correctly cited the decision of the Court of Appeal in Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251 at 274 in support of that proposition.
Applying that principle, the Member found that Mr Tannous did not inform Mr Leedon of precisely what additional work he was performing nor the value of that work. He did not accept that "mere payment" by Mr Leedon constituted "an acceptance of the unilateral variation of the contract, or the creation of a further implied contract": at [74]. As a consequence, the Member concluded at [76]:
"[76] The Tribunal accepts that the actual value of the work performed by the respondent is significantly less than the amount paid by the applicant, as set out in the report of Mr Capaldi. Mr Capaldi qualifies the cost of rectifying defective work and completing work that should have been performed under the contract as $39,463.28 and the amount the applicant overpaid the respondent for the reasonable value of the work actually performed as $46,100. When added together, both amounts total $85,563.28. However, as the applicant only seeks the amount of $77,100 in the proceedings, the Tribunal awards the applicant the amount of $77,100."
Finally, the Member recorded at [77] that an order under s 48MA of the Home Building Act, requiring that Mr Tannous attend the premises to rectify defective work and complete incomplete work was inappropriate. He so determined because Mr Tannous did not hold a builder's licence entitling him to carry out that work.
[5]
Application to set aside the Tribunal's order
On 18 October 2016, Mr Tannous not only filed a Notice of Appeal from the decision of the Member, he also filed an application to set aside that decision. The application was made under cl 9 of the Civil and Administrative Tribunal Regulation 2013 (the Regulation). Clause 9 relevantly provides:
9 Additional power to set aside or vary decision determining proceedings
(1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances:
…
(b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.
(2) The Tribunal may make an order under this clause of its own motion or on the application of a party.
(3) Unless the Tribunal grants and extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made.
…
(5) A party may not make an application for an order under this clause to set aside or vary a decision of the Tribunal if:
(a) an internal appeal or appeal to a Court against the decision has been lodged or determined, or
(b) an application for a judicial review of the decision has been made or determined."
…
The application came before a Member of the Tribunal on 28 October 2016, not being the Member who determined the proceedings below. The Member noted that the application did not appear to have been made within the time limited by subclause 9(3) of the Regulation and therefore a determination was required as to whether an extension of time to make the application should be granted. The Member also noted that the present appeal had been commenced by notice filed on the same day as the set aside application. However, he concluded that as the set aside application had been lodged "at the same time and not after the appeal was lodged", cl 9(5) did not apply with the result that the set aside application could be determined. How he reasoned to that conclusion is not disclosed.
Although, not ultimately the basis upon which we have determined the appeal, the correctness of that conclusion is not, with respect, apparent. Where both an application to set aside a decision and a notice of appeal commencing an internal appeal from that decision are lodged simultaneously, it does no offence to the language of subclause 9(5)(a) of the Regulation to say, at that time, that "an internal appeal … has been lodged", with the consequence that the opening words of or chapeau to the subclause, proscribing the making of a setting aside application, are engaged. The evident purpose of the proscription is to allow a party, whose circumstances engage the provisions of paragraphs (a) or (b) of subclause 9(1), to pursue either a set aside application or to pursue an appeal/judicial review application in order to have a Tribunal decision reviewed, but not both. The requirement for a party to make an election avoids potentially conflicting decisions within the Tribunal upon the review of a decision when the issues relevant to the determination of either form of review are, if not identical, then closely related and potentially overlapping.
The Member hearing the set aside application on 28 October did not then make a final determination. He recorded three matters of present relevance. First, he recorded that Mr Tannous had provided no explanation for delaying lodgement of the application until 18 October when the decision was dated 23 September.
Secondly, he recorded an assertion by Mr Tannous at the hearing that the Tribunal's decision was unfair because had he been present he would have contended that Mr Leedon "is an adult and no one made him pay" and that he had "changed his mind in so many thing [sic] needed to be done", incurring extra charges. Thirdly, the Member recorded that "no material" had been filed in support of the application.
By reason of those matters, the Member considered that Mr Tannous should be afforded the opportunity to advance his application on a proper basis and as a consequence made procedural directions. Those directions included a requirement that Mr Tannous provide to both Mr Leedon and to the Tribunal, evidence supporting the claim that he was not able to attend the hearing on 11 July because of the medical indisposition of his son, evidence in support of his application to set aside the decision of 23 September, including evidence explaining his delay in making the set aside application, as well as both evidence and submissions in support of the case that he would have made had he attended the hearing. That material was required to be provided by 4 November.
The directions made on 28 October also included a statement that documents not provided as directed could not be relied upon at the hearing of the application, without leave of the Tribunal. Those directions further stated that, subject to the submissions received from the parties, the application for an extension of time as well as the application to set aside the decision "are likely to be determined on the basis of the written material provided".
The application by Mr Tannous to set aside the decision of 23 September 2016 was dismissed by a Member of the Tribunal who was neither the Member who gave the decision under appeal nor the Member who made the preliminary decision and gave directions on 28 October. The decision, which was given on 17 November, records that the Member was not satisfied that the case sought to be advanced by Mr Tannous "was not adequately put to the Tribunal" at the hearing on 11 July 2016. In his Reasons, the Member noted that Mr Tannous had not complied with the procedural directions given on 28 October; that there was sufficient evidence before the presiding Member at the original hearing to establish that an order under s 48MA of the Home Building Act could not have been made and "that would have been the case even if [Mr Tannous] had appeared at the hearing on 11/7/16". The Member continued:
"The Tribunal finds that insufficient material has been provided by the set aside applicant in the application to set aside. None of the material provided points to any arguable defence(s) to the homeowner's claim or such as would found a basis for the Tribunal to conclude that a different decision may have been reached on 11/7/16. In this regard, the Tribunal further notes that the presiding Member considered the documents provided by the set aside applicant for [sic, at] the formal hearing when making his determinations and findings as set out in the Member's Reasons published on 23/9/16."
[6]
The appeal
By his Notice of Appeal, Mr Tannous identified two matters as being his grounds of appeal. First, he states that he did not appear at the hearing on 11 July 2016 because he was attending his infant son who was in hospital at the time. Second, he stated that he would "like another Member to look at the matter and do another hearing to hear my case and my side of the matter". His notice further states that the decision was "unfair".
In completing that part of the Notice of Appeal requiring him to identify the orders sought on appeal, he inserted the following:
"to reconsider the Member's decision as I'm in financial hardship and my son is still undergoing treatment."
The entitlement of Mr Tannous to appeal arises under s 80(2) of the Civil and Administrative Tribunal Act 2013 (the Tribunal Act) as the decision of the Member was a "general decision" within the meaning of s 29 of the Act and is therefore an "internally appealable decision" within the meaning of s 32(4).
However, by s 80(2)(1)(b) of the Tribunal Act, an appeal as of right is limited to a question of law arising from the decision, while an appeal on any other ground requires leave. As the Notice of Appeal filed by Mr Tannous does not identify any question of law, he requires leave to appeal. Further, given that his appeal arises from a decision given in the Consumer and Commercial Division of the Tribunal, the grant of leave to appeal is circumscribed by the provisions of cl 12 of Sch 4 to the Tribunal Act.
For the present, it is relevant to note that by cl 12(1) leave may be granted in a case of the present kind,
"…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)."
Given the apparent need for leave to appeal, Mr Tannous completed those parts of his Notice of Appeal that were intended to address the requirements for leave. When completing that part of the Notice directed to evidence that he contended should have been given more weight, he identified the "inspection report" that he had filed. Under this same head he also included observations directed to the integrity of the evidence given by Mr Leedon.
The only new evidence proposed to be given was identified as being a medical certificate indicating that his son was in hospital at the time of the hearing in July. He also stated that "work was completed" at the Premises and that he did not make Mr Leedon "do anything".
By his Reply to Appeal, Mr Leedon stated that he supported the order of the Member for the reasons expressed in the Decision. The Reply also contains a statement that at the directions hearing on 3 May 2016, Mr Tannous appeared and had inquired of the Member as to his position "if a relative was in hospital" at the time of hearing. According to Mr Leedon (and not refuted by Mr Tannous at the hearing before us), the Member conducting the directions hearing responded by indicating that if that event should occur, Mr Tannous should contact the Tribunal to indicate his position "well in advance of the hearing date". Mr Leedon also denied in his Reply an assertion made in the Notice of Appeal that after 19 March 2016, Mr Tannous had sent messages seeking to return to the Premises but that Mr Leedon had not responded to those messages.
Following dismissal of the set aside application by Mr Tannous, the present appeal was listed for directions. The Member then constituting the Appeal Panel made directions requiring that Mr Tannous lodge with the Tribunal and provide to Mr Leedon by 23 December 2016, the evidence filed in the original hearing upon which he intended to rely for the purpose of his appeal, together with his written submissions in support of the appeal. Nothing was filed by Mr Tannous in response to that direction at any time prior to the hearing of the appeal.
When the hearing before us commenced, Mr Tannous acknowledged that he had not prepared any written submissions for consideration nor had he provided any documentary evidence. He stated that his infant son was in hospital at the time of the original hearing and that was the reason he had not attended the hearing in July 2016. However, upon questioning by us, Mr Tannous stated that his son had been in hospital since birth, that is for some months prior to the hearing fixed in July 2016. He did not contend that his failure to appear on 11 July was due to an unexpected medical emergency or change in his son's condition, nor was it due to the unexpected admission of his son to hospital on or immediately prior to that day.
He repeated before us the assertion made in his Notice of Appeal that he had not "forced" Mr Leedon to do anything, including to make payments that he had requested. He also repeated the claim that he had been asked to do work not stated in the request for a quote.
While clearly concerned with the order for payment of $77,100, Mr Tannous did not address the Reasons. In particular, he made no reference to those paragraphs of the Reasons in which the Member discussed the report of Mr Davis, including the latter's acknowledgement that some of the work inspected was "incomplete and defective". Nor did Mr Tannous offer any rational explanation for his failure -
1. to provide the evidence directed to be filed in November 2016 in support of his application to set aside the decision; or
2. to provide the evidence and submissions directed to be filed for the purpose of this appeal.
Even allowing for the difficulty sometimes experienced by a self-represented litigant in identifying a question of law, we do not discern from either the Notice of Appeal nor from what Mr Tannous said to us any question of law arising from the decision. Indeed, our consideration of the reasoning of the Member, which we have earlier set out at some length, exposes no error of law to us.
Clearly, the purpose of Mr Tannous in bringing this appeal is to have the proceedings reheard because he failed to appear before the Member in July last. While we are mindful of what Mr Tannous has told us of his infant son's medical condition, we cannot allow any sympathy that might arise on that account to detract us from the proper exercise of discretion to grant leave to appeal, particularly having regard to the manner in which that discretion is circumscribed by the provisions of cl 12 of Sch 4 to the Tribunal Act.
Mr Tannous has advanced no evidence establishing that the vicissitudes attending his son's illness on 11 July 2016 required that he attend hospital for that day rather than attend to his responsibilities, as a litigant, in the Tribunal. He was aware, well in advance of 11 July, that the date for hearing had been fixed and of his obligation to provide advance notice to the Tribunal and to Mr Leedon of any adjournment application brought about by the hospital admission of a relative. Why he was not in a position to give that notification in advance of 11 July remains unexplained.
The principles appropriate to be applied when leave to appeal is sought in an appeal from a decision in the Consumer and Commercial Division of the Tribunal have been articulated by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. At [84], the Appeal Panel stated that in order to be granted leave "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". The Appeal Panel continued by stating:
(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 interest of justice for it to be reviewed…
By reference to the statutory provisions and these principles, we discern no substantial miscarriage of justice by reason of any of the three matters identified in paragraphs (a), (b) or (c) of cl 12(1) of Sch 4. In the circumstances earlier outlined, it was not unfair that the hearing before the Member proceed in the absence of Mr Tannous. Secondly, it is significant that the Member did consider the critical evidence in the proceedings found in the report of Mr Leedon's building expert as well as that found in the report of Mr Tannous' expert. The Member's Reasons disclosed why he preferred the evidence of the former over the latter. His reasoning in so doing is unexceptional.
Further, it could not rationally be said that the decision was made against the weight of evidence having regard to the manner in which the Member weighed the expert evidence before him. No significant new evidence was identified by Mr Tannous supporting his contention that a miscarriage of justice had occurred. The provision of a medical certificate directed to the inability of Mr Tannous to appear in Court on 11 July, even if now provided, is not "new evidence" in the manner described in cl 12(1)(c). In short, Mr Tannous has not established any of the bases upon which a substantial miscarriage of justice can be relied upon in order to justify the grant of leave to appeal. Nothing Mr Tannous has told us (assuming its acceptance as evidence), directed to the substance of Mr Leedon's claim, would, in its totality, "strongly preponderate" against the conclusion reached by the Member at first instance (Collins v Urban at [77]).
It is not inappropriate to observe that the matters we have considered as decisive of the appeal are, in essence, the same matters as informed the decision of the Tribunal Member who determined that the application by Mr Tannous to set aside the decision should be refused. The circumstance that essentially the same issues have been twice argued is unfortunate. This circumstance might have been avoided had Mr Tannous first been put to his election as to whether the strikeout application or the appeal was to be pursued. However, other than to make that observation it is unnecessary to pursue that aspect of the matter further.
Finally, we do not overlook the matter stated by Mr Tannous in his Notice of Appeal that he is "in financial hardship". Apart from the fact that no evidence was adduced by him directed to his financial position, the fact that he may have some difficulty in meeting the payment required by the order for payment of $77,100 affords no legal basis upon which to refrain from making that order. The financial position of Mr Tannous is only relevant to any application he may make for time to pay.
[7]
Conclusion
For the Reasons that we have indicated, leave to appeal will be refused. This has the consequence that the appeal must be dismissed.
We therefore make the following orders:
1. Leave to appeal refused.
2. Appeal dismissed.
3. Confirm the order made in proceedings HB16/17038 on 23 September 2016 that the appellant Jacques Tannous pay the respondent Joseph Leedon the sum of $77,100 immediately.
[8]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Principal Registrar
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: 25 July 2017