Templeman v O'Sullivan

Grounds of appeal and submissions

1. The grounds of appeal set out in paragraph 11B of the notice of appeal were as follows: 1. The orders were made mainly based on the lack of evidence from me (the appellant) 2. I never received a letter(s) stating what is required by me to produce for the Tribunal. 3. Some of the evidence in Ex A is false and untrue. These false evidences resulted in the orders. 4. Some of the facts used in Ex A had no supporting evidence. Eg water chemistry.
2. The orders sought in the notice of appeal as set out in section 11C are as follows: Either the builder be given the chance to rectify the issues or he pay the clients the sum of $8,688.00.
3. The appellant also seeks leave to appeal. In this regard he relies on the fact that he did not receive any directions as to the evidence or expert witness material he was required to provide which resulted in a miscarriage of justice and he seeks to opportunity to provide to the Tribunal the necessary evidence. He contends that the decision was not fair and reasonable because he did not receive any directions. He also says the decision was against the weight of evidence.
4. In relation to his evidence, Exhibit 1, he says that "this document is not what was required by the Tribunal. Never have I received a letter stating what is required."
5. In relation to the Decision, the appellant says that it was against the weight of evidence because it was "based on assumption and false evidence, not fact". The appellant says the Tribunal "should of ordered the builder to do the rectification works".
6. Further the appellant wishes to rely on a structural engineer's report and pool interior report and says the reports were not reasonably available at the time of hearing. In relation to when he became aware of this evidence he says in paragraph 12Biii: Around the 10/05/2015 I became aware that I did not receive an important letter from the Tribunal stating what was required for the response.
7. The appellant seeks an extension of time to appeal.
8. Finally, he says that he has paid an amount of $19,214.95 to the respondents which he asserts "is already a case of unfairness and a miscarriage of justice".
9. In submissions before the Appeal Panel, the appellant drew the Appeal Panel's attention to a number of matters.
10. Firstly, the appellant asserted in the appeal that he did not receive a copy of the directions made by the Tribunal in November 2014 in relation to the filing and service of his evidence. However, when questioned by the Appeal Panel, he acknowledged that he had heard what the Member had said on that day concerning the filing and service of evidence. Further, the appellant did not deny the submission by the respondents that the Tribunal had made clear that expert evidence would also need to be filed and served prior to the hearing.
11. Secondly, the appellant said that he had tried to obtain access to inspect the respondents' property on 18 February 2015. By text messages sent 16 February, he sought access to the property from 7:00am until 5:00pm; however, the respondents were only prepared to give access for a three hour period from 3:00pm until 6:00pm on that day. These text messages are found in bundle A1 at pages 15-17.
12. The appellant then submitted that he could not arrange for his experts to attend in the afternoon at the nominated times because the experts would need to travel to the respondents' premises at Woolgoolga.
13. Thirdly, the appellant submitted that he had applied to the Tribunal for adjournment of the hearing in April 2015 which had been refused.
14. When questioned by the Appeal Panel about the preparation of his expert evidence prior to the hearing, the appellant said that he did not engage experts after access was offered in a limited form. Rather, he attempted to discuss the issues with the respondents' independent expert directly.
15. Further, the appellant acknowledged to the Appeal Panel that he had taken no steps to arrange with the respondents any alternative access after 18 February 2015, his only communication being with a staff member of the Registry of the Tribunal who apparently told him that any issue should be raised with the Tribunal Member at a hearing.
16. In relation to the decision made by the Tribunal Member, the appellant said the Tribunal had misunderstood the appellant's evidence and/or had come to inappropriate conclusions.
17. In this regard, the appellant said that the Tribunal was in error in: 1. concluding the Quartzon finish of the swimming pool was delaminating; 2. allowing as repairs the cost of cutting off the top section of concrete forming the shell of the swimming pool (which was honeycombed) and allowing the amount provided in a quotation as the cost of repairs.
18. In making these submissions, the appellant relied on various reports submitted as part of the appeal papers, particularly the report of Dennis Partners and Wade Boss found at pages 10 and 14 of bundle A3.
19. It is to be noted in passing that these reports were prepared after the hearing of the original proceedings in May 2015. They are reports responding to Mssrs Tozer and Anderson (who provided evidence at the original hearing). They had been prepared in circumstances where no inspection of the defective swimming pool has in fact taken place by the appellant's experts.
20. The appellant relied on these reports to establish that any delamination of the Quartzon pool finish has not been proven to be caused by a problem arising from the appellant's work but rather from the incorrect maintenance of the swimming pool, in particular the chemistry of the water. The reports were also relied upon to demonstrate that an alternative and less expensive method of repair to cutting the top off the shell is available as a rectification method.
21. Consequently, the appellant says that his appeal ought to be allowed.
22. In reply, the respondents filed a Reply to Appeal dated 14 July 2015. In that document the respondents say that: 1. A directions hearing occurred on 14 November 2014; 2. The appellant was clearly advised by the Member of what was exactly required of him for the Tribunal eg Expert Witness Reports, Scott Schedule, Engineer Reports etc to which the appellant's response was "yep no worries"; 3. That the Member confirmed the address for correspondence for any directions to be sent; 4. The respondents provided expert evidence from Mssrs Tozer and Anderson, appropriately qualified people; 5. There was no basis to conclude that the expert evidence was untrue or false; 6. The appellant's work "showed poor workmanship in the construction of (the) pool"; 7. The appellant had been given "plenty of opportunities in the past nearly two years to come back to rectify the issues"; 8. The quotation for rectification works of $8,688.00 which the appellant had submitted in support of his appeal "is clearly biased as it is in his own interest to pay as little as possible"; 9. The evidence now proposed to be adduced on the appeal should not be admitted as the conclusions are unjustified because the experts have never inspected the swimming pool; 10. The appellant was advised as to the requirements for the preparation of the original hearing at the directions hearing on 14 November 2014; and 11. The appellant had 28 days in which to appeal and time should not be extended.
23. In submissions made by telephone at the hearing of the appeal, the respondents also said that the appellant had been advised at the directions hearing that any experts he wished to call as witnesses must attend the final hearing.
24. The Appeal Panel notes that the appellant did not dispute this fact.

Consideration

1. There is no dispute that the Tribunal had jurisdiction to hear the building claim under the HB Act.
2. The hearing occurred on 13 April 2015.
3. The appellant appeared at that hearing and tendered various documents in evidence. That material, which was Exhibit 1 at the original hearing and also Exhibit 1 in the appeal, did not include any expert evidence. Rather, it was in the nature of a statement from the appellant about the history of the project, his views about the defects and how the work should be rectified.
4. As indicated above, the Tribunal awarded the respondents the sum of $34,040.00 having determined in the Decision that this amount was the cost of repairing the defective work. This award had been made in circumstances where the application had been listed for directions on 14 November 2014 and the parties had been directed to file and serve their evidence, including expert evidence upon which they intended to rely at a final hearing.
5. The appellant received notice of the Decision on 27 April 2015. See item 3 of the Notice of Appeal. However, the notice of appeal was not filed until 18 June 2015.
6. It is clear from the Notice of Appeal that the appellant accepts the work he did for the respondents was defective and required rectification. In this regard the orders which he seeks on appeal as recorded in the Notice of Appeal at 11 C are: Either the builder be given the chance to rectify the issues or he pay the clients the sum of $8688.00.
7. The appellant says he now has independent expert evidence which he obtained in May 2015, after the original hearing, upon which he seeks to rely to show that the amount awarded by the Tribunal is excessive.
8. In essence, the appellant raises three issues: 1. The appellant was unaware of the Tribunal's directions and not afforded a reasonable opportunity to present his evidence; 2. On the day appointed for inspection the appellant's experts were not available; 3. The appellant now has expert evidence which demonstrates the award of the Tribunal was excessive.
9. An appeal must be lodged within 28 days from the date the appellant received the Decision: see Rule 25(4)(c) of the Civil and Administrative Tribunal Rules, 2014. This required the appeal to be lodged on or before 25 May 2015.
10. The appeal was not lodged until 18 June 2015. Consequently, the appellant requires leave to appeal out of time.
11. If leave is granted, pursuant to section 80(2)(b) of the Civil and Administrative Tribunal Act, 2013 (NCAT Act) the appellant has an appeal "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds".
12. Because the appeal is from a decision of the Tribunal exercising a Division function of the Consumer and Commercial Division, leave can only be granted if the appellant can satisfy the Appeal Panel that he may have suffered a substantial miscarriage of justice. This requires the appellant to demonstrate the Decision was not fair and equitable, was against the weight of evidence or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with): see cl12 Sch 4 of the NCAT Act. The principles set out in Collins v Urban [2014] NSWCATAP 17 are relevant in determining whether or not leave should be granted.
13. It is first necessary to consider whether time in which to appeal should be extended.
14. The principles relevant to determining whether or not time should be extended are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. At [22] in Jackson the Appeal Panel said: 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].
15. For the reasons that follow, the application to extend the time in which to appeal should be refused and the appeal dismissed.

Delay

1. The appeal was lodged 23 days late.
2. In item 13 of the Notice of Appeal, the appellant sets out the reason for delay as follows: I did not become aware of the evidence/documents required by the respondent until 10/05/2015. It has taken me a month to compile the necessary documents/evidence.
3. This statement would indicate that the respondent had the necessary evidence by 10 May 2015 and could have filed the appeal by the due date, namely 25 May 2015.
4. The view that the appeal could have been filed by 25 May 2015 is supported by the fact that the respondent now seeks to rely upon the reports of Dennis Partners dated 25 May 2015 (bundle A3 p10) and Wade Bosse dated 19 May 2015 (bundle A3 p14). It should be noted that neither of these reports involved the authors inspecting the subject swimming pool and no explanation is provided as to why these reports could not have been obtained prior to the original hearing on 13 April 2015.
5. The absence of a satisfactory explanation about delay counts against the grant of leave

Prospects of success

1. In order for the appellant to succeed on the appeal it would be necessary for him to demonstrate that he was denied a reasonable opportunity to present his case, a matter which may constitute an error of law, or that he has suffered a substantial miscarriage of justice so that he should be granted leave to appeal.
2. In effect, the appellant asserted that he was unaware of the directions and therefore did not have a reasonable chance to prepare his case.
3. The Appeal Panel does not accept this assertion and finds that the appellant has not been denied a reasonable opportunity to prepare for and present his case at the hearing on 13 April 2015.
4. The proceedings to which the Decision relates were commenced in 2014.
5. There was a directions hearing on 14 November 2014 at which the appellant was present where the Tribunal made directions for the filing and service of evidence. Those directions included the filing and service of each party's expert evidence. While the appellant asserts he did not receive written notice of the directions which were published by the Tribunal after the hearing, it is quite clear to the Appeal Panel from the concessions he made during the hearing of the appeal that he was aware of the directions and his obligations in relation to the provision of evidence and what he was required to do for the purpose of a final hearing. The fact he was aware of the directions is also corroborated by the notation on the front page of Exhibit 1 (the documents tendered by the appellant at the original hearing) which we have set out in [12] above.
6. Further, the appellant understood that he was required to provide any expert evidence prior to the hearing. In February 2015 he sought to make arrangements to attend the respondents' property with his experts for the purpose of inspecting the swimming pool, the subject of the dispute, on 18 February 2015. The text messages which we have identified above establish this fact.
7. The appellant complained that his experts were effectively denied access on this day because the respondents only offered access between the hours of 3pm and 6pm, whereas the appellant had sought access from 7am until 5pm.
8. We do not accept this submission. On any view the time offered by the respondents overlapped with the time at which the appellant had sought access, that overlap being 3pm to 5pm. However, the appellant did not avail himself of the opportunity to inspect the premises at this time. Further, the appellant took no steps to seek access to the premises with his experts at any time thereafter up until the hearing on 13 April 2015.
9. Consequently, there seems no basis to conclude that the appellant was denied procedural fairness or a reasonable opportunity to be heard.
10. Secondly, a review of the Decision reveals that the Tribunal considered all the evidence, the only expert evidence being provided in the reports from Mssrs Tozer and Anderson. These reports are found in the respondents' bundle R1.
11. The Tribunal made various findings in consequence of these reports including: 1. The Quartzon finish was drumming in many locations: Decision [18.1]; 2. Rust staining was present in the Quartzon finish with steel reinforcement being exposed: Decision [18.3]; 3. There was inadequate compaction of the concrete constituting the pool shell with the presence of "honeycombing": Decision [18.5]; 4. There was no evidence to support the appellant's contention that poorly maintained water quality and chemical imbalance had caused the Quartzon finish to delaminate: Decision [18.6]; 5. There was evidence of multiple inspections over time which showed a progressive "degradation of the structure": Decision [22]; and 6. There was evidence by way of market-based quotes that the cost of rectification work was $34,040.00.
12. Having reviewed the expert reports of the respondents (that is, the applicants in the original proceedings), we are satisfied that these findings were reasonably available to the Tribunal and that the appellant has not demonstrated he has any reasonable prospects of establishing he may have suffered a substantial miscarriage of justice because the Decision was against the weight of evidence or was not fair and equitable.
13. The last matter to consider is whether the appellant has any reasonable prospect of success in seeking leave to appeal on the basis that he asserts there is evidence now available that was not reasonably available at the time of the original hearing.
14. In Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 the Appeal Panel examined what was meant by the expression "significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)". At [23]-[25] the Appeal Panel said: 23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c). 25 Further, to grant leave simply on the basis of whether a party had been unsuccessful in their attempt to obtain evidence would allow any party who has a personal excuse for not providing evidence otherwise reasonably available an opportunity to seek leave to appeal any decision of the Tribunal. Such an outcome would not promote finalisation of the real issues in dispute in a just, quick and cheap manner, as an opposing party would be liable to face a successful appeal and a rehearing merely because of the personal circumstances of the person who failed to procure necessary evidence.
15. In the present case, it is clear that the proposed evidence, in the form of the Dennis Partners report and the Bosse report, were reports which could have been obtained prior to the original hearing on 13 April 2015.
16. The persons who prepared these reports did not in fact inspect the swimming pool, but simply reviewed information provided to them by the appellant.
17. No evidence was provided to the Appeal Panel that the reports could not have been obtained at an earlier time and therefore the Appeal Panel is not satisfied the appellant has any prospects of obtaining leave to appeal nor leave to rely on this further evidence.
18. The guiding principle found in s 36 of the NCAT Act requires the Tribunal to ensure the just, quick and cheap resolution of the real issues in dispute. Section 38(5) of the NCAT Act provides: (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
19. The Appeal Panel is satisfied these obligations were met and the respondents' vested right to the benefit of the Decision and the orders made should not in the circumstances be displaced.

Orders

1. The Appeal Panel makes the following orders: 1. Leave to extend the time in which to appeal is refused; 2. Leave to appeal is refused; and 3. The appeal is otherwise 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: 21 January 2016