Thornton v Desire Constructions Pty Ltd

NCAT Appeal Panel|2020-05-04

REASONS FOR DECISION

This appeal relates to architrave and roof building work carried out by the respondent for the appellant, and the acceptance of a particular quote by the Tribunal Member in the assessment of damages arising from defective building work.
An appeal against the costs order made in the first instance proceedings raises the issue of, at which point in proceedings is the amount 'claimed or in dispute' ascertained for the purpose of rule 38 of the Civil and Administrative Tribunal Rules 2014.
The Tribunal decision the subject of this appeal was given on 22 January 2020. On 20 March 2020 the Tribunal dealt with the issue of costs, ordering the parties to the proceedings to bear their own costs.
In the Tribunal at first instance and in these appeal proceedings the parties were self-represented. In those circumstances and in accordance with established Appeal Panel practice, we will follow what was stated by an Appeal Panel in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]: '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.'

The Grounds of Appeal

As stated above we will look at the Grounds of Appeal generally.
The appellant appeals against the order in her favour. She states that the Tribunal's order should be set aside and an order in her favour in the sum of $32,135.00 should be made. The appellant stated in her submissions that she wished to amend the amount claimed to $12,994.42 in excess of the sum awarded in her favour. Another way of expressing the amount now sought by the appellant is that she seeks the decision at first instance to be overturned and replaced with an order in her favour in the sum of $30,825.00. How that amount is made up or arrived at was explained in a hand written sheet titled "Rectification Costs' prepared by the appellant based on two quotes provided by Donovan Building Group that have in some respects been adjusted by the appellant. One of the quotes relied upon was provided after the Tribunal decision and is the subject of an application for leave to appeal on the ground that significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In support of her appeal the appellant states that: 1. She made an accidental slip or omission under pressure at the hearing and was rushed by the Member at the end of the day into accepting the quote which was taken into evidence and accepted by the Member; 2. The quote does not cover the total of rectification costs needed to rectify the damage caused by the respondent; 3. The acceptance of the quote by the Member will leave her severely disadvantaged; 4. The hearing was not fair and just because all areas of damage were not addressed and because she was pressured and rushed into accepting the quote as a measure of damage; 5. The decision was not fair and equitable because the respondent's expert at the hearing was also the expert for its insurer; 6. The Tribunal decision was unfair because the defects caused by the respondent run the entire length of the roof, not just the sections that were cut by the respondent; 7. The decision was against the weight of evidence; and 8. Significant new evidence is now available that was not reasonably available at the time of the hearing.

Appeal Directions

Directions were made before the appeal hearing requiring, among other things, the appellant to lodge with the Appeal Panel all evidence provided to the Tribunal below on which she intended to rely upon. The parties were also ordered to provide: 'The sound recording of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on and a typed copy of the relevant parts.'
Both the appellant and respondent have provided us with extracts from the transcript that they rely upon. We have not been provided with what we consider to be a reliable bundle of all evidence before the Tribunal at first instance. In that regard we have not been provided with a full copy of the appellant's building expert's report or the building report relied upon by the respondent. It may be that the appellant has only provided the evidence at first instance that she seeks to rely on. We will proceed on this basis.
At the Appeal hearing we made the following directions: 'The appellant is to provide to the Appeal Panel and the respondent with the following by 14 May 2020 - Copies of the 2 quotations from Vertigo Roofing and the copy of the quotation from State-wide Roofing and Rail. The respondent is to confirm if those are not the documents that were provided to the Tribunal at first instance by 21 May 2020. Leave is granted to the appellant to amend the Notice of Appeal to include an appeal against the costs decision dated 20 March 2020 in proceedings HB 19/41686.'
Directions were also made for the parties to file and serve submissions regarding the appeal against the costs decision at first instance, dated 20 March 2020.
As regards the directions made at the Appeal hearing, the appellant has provided us with copies of: 1. Vertigo Roofing quote Q1037 dated 28 June 2019 in the sum of $13,962.58; 2. Vertigo Roofing quote Q1037 dated 16 August 2019 in the sum of $19,615.08; and 3. Statewide Roofing and Rail quote 234 dated 13 August 2019 in the sum of $32,500.00.
The respondent confirmed that the quotes referred to were those provided to the Tribunal at first instance. The appellant also provided to us documents not referred to in our orders made at the hearing, namely handwritten notes by the appellant and photographs referred to in the Jims Building Inspection reports. The respondent objected to these documents on the basis that they were not referred to in our orders. We will not refer to these documents on the basis of the respondent's objection. The appellant had every opportunity to provide these documents in accordance with the directions made before the appeal hearing.

Internally appealable decisions

The decisions of the Tribunal below are internally appealable decisions and an appeal can be made from them as of right where there is an error of law and with the leave of the Appeal Panel on specified grounds: see, s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 (the 'CAT Act').
As the decision the subject of the appeal 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 CAT Act, Sch 4, cl 12)
We are of the view that the issues raised by the appellant are to be considered as applications for leave to appeal under each of the limbs of clause 12 of Schedule 4 of the CAT Act, stated above.

Principles to be applied in an application for leave

The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled.
The statutory regime referred to above has been considered and explained by an Appeal Panel in Collins v Urban [2014] NSWCATAP 17. The statutory regime involves a two stage process. First, has the appellant satisfied the Appeal Panel that she may have suffered a substantial miscarriage of justice because the decision at first instance was not fair and equitable, or against the weight of evidence, or because new evidence has arisen which was not reasonably available at the hearing? Only if so satisfied, the Appeal Panel may proceed to the second stage to determine whether it should exercise its discretion to grant leave and that discretion should be exercised in accordance with well-established principle.
In order to establish that an appellant may have sustained a substantial miscarriage of justice, the Appeal Panel in Collins v Urban stated at [76]: '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.'

Appeal against the 22 January 2020 decision

We will first consider the appellant's grounds of appeal that under pressure, and rushed by the Tribunal Member she made a slip or error in accepting the quote which has left her severely disadvantaged. The appellant also states that the quote 'was not tabled but taken into evidence'.
We understand this to be an application for leave to appeal because the proceedings were not fair and equitable.
At [19] we set out what the appellant must establish in order to submit that she may have suffered a substantial miscarriage of justice. Next she must establish that the substantial miscarriage of injustice occurred because the decision was not fair and equitable. In that regard the decision will not have been fair and equitable if there was a denial of procedural fairness.
The appellant states that near the end of the proceedings she felt that she was pressured and rushed by the Tribunal Member to make a quick decision to accept the quote.
The appellant describes the Member's conduct in a number of different ways in her Notice of Appeal, stating that before the proceedings finished the Member became 'a little annoyed' and 'raised her voice' when asking her about the quote. She also states that she was 'brow beaten' by the Member.
We have not been provided with a disc or a USB drive which contains a sound recording of the proceedings. As a result we are unable to hear what was said by the Tribunal Member, including the tone of her voice, or how loud she spoke to the appellant. We are also unable to ascertain whether the Tribunal Member became 'a little annoyed' with the appellant or 'raised her voice' to the appellant or 'brow beat' the appellant. As a result, without anything more, we find that the appellant has failed to persuade us that the Tribunal Member acted in the ways described in this paragraph and in so doing deprived the appellant of procedural fairness.
At [20] we noted the appellant as stating that the quote 'was not tabled but taken into evidence'. The transcript provided by the appellant establishes that she stated: 'I table the Vertigo roofing Q1037 dated 28/06/2019 into evidence.' and that soon after the Tribunal Member made it plain that she took into evidence the Vertigo roofing quote dated 28/06/2019 which was to replace the whole of the roof.
It is clear to us that the Tribunal Member accepted the quote into evidence as she was entitled, if not obliged, to do. No doubt the appellant has misunderstood that by stating what she said, as quoted above.
We will now consider based on the extracts from the transcript provided to us, whether the Tribunal Member pressured and rushed the appellant to make a quick decision to accept the quote.
The extracts from the transcript provided by the appellant indicate that at 4.52 pm the Tribunal Member noted that the matter had not settled and indicated that she would hear the closing submissions.
The appellant states that the following exchange then took place. 'Member: Are you still claiming the $38,000 Donovan report or the $13,000 Vertigo report or the $19,000 Vertigo report from you. Appellant: Yes the $13,000.00 Vertigo report. Member: The one given to you for $13,000.00. Appellant: Yes Member: For $13,962.58'
The respondent has also provided a transcript of the closing stages of the proceedings which we set out below. '5:10:36 Parties return from negotiating Member are we waiting for Mr Craig or-his not-yeah that's fine and the case hasn't Settled Applicant {INAUDIBLE} Respondent's Expert No Member Okay, you can start making your submissions now Miss Thornton Applicant What was that? Member you can start making your submissions now, your closing submissions Applicant Ummm okay, we've discussed and I decided that it's unfair of me to expect them to pay for the trimdek upgrade so I agreed to go with Vertigo's quote. Member oh wait a second, are you telling me about your negotiations outside Applicant mmmm Member okay, they haven't succeeded - you haven't accepted any offers by the respondent is that right? Applicant I did but then they withdrew it because I added costs. Member you put a counter offer, oh right - you wanted the offer to be inclusive of costs wrapped up together and you wanted to accept their offer and then ask the tribunal for an offer that they pay your costs. Okay so it hasn't settled then - so I don't need to hear about the negotiations, I need you to go to your claim now and take me to the evidence and that can be both the documentary and the oral evidence and tell me why the tribunal should make the order that you are claiming. But are you still claiming the thirty eight odd thousand dollars from the Donvan Report or are you now claiming the thirteen thousand nine hundred and sixty two from the vertigo report or the nineteen thousand from the other vertigo report Applicant Well I lowered that to thirteen thousand Member That's the negotiations but what about for me, what am I deciding on? Applicant Okay yes, Vertigos I'll go with that Member the one that was given to you for $13,962? Applicant that's correct and the architrave one for $3,558 which is Donovans I believe Respondent It's outlined in Mr Craig's report, it does form part of Donvan Building Groups quote they separated the roof and the windows as a separate. Member got it, $3,858 so you want that Respondent Can you just tell me the exact amount of the vertigo's sorry I haven't seen that Member I will photocopy it Respondent thank you'
The respondent's transcript is a fuller version of what was said by the Tribunal Member and the parties at the end of the hearing. We prefer it to the brief version produced by the appellant. However both versions of what occurred at the hearing establish that the Tribunal Member asked the appellant to provide her closing submissions and is so doing to identify the quote that she was relying on. Both transcripts prepared by the parties indicate the Member as asking the appellant, in an open question, what quote she was relying on.
The appellant's version: 'Member: Are you still claiming the $38,000 Donovan report or the $13,000 Vertigo report or the $19,000 Vertigo report from you. Appellant: Yes the $13,000.00 Vertigo report.
The respondent's version: 'Member: But are you still claiming the thirty eight odd thousand dollars from the Donvan Report or are you now claiming the thirteen thousand nine hundred and sixty two from the vertigo report or the nineteen thousand from the other vertigo report Applicant Well I lowered that to thirteen thousand Member That's the negotiations but what about for me, what am I deciding on? Applicant Okay yes, Vertigos I'll go with that Member the one that was given to you for $13,962? Applicant that's correct and the architrave one for $3,558 which is Donovans I believe'
We find that the parties' evidence of what was said at the hearing establishes that there is no basis for finding that the appellant was pressured or rushed by the Tribunal Member to make a quick decision to accept the Vertigo Roofing quote Q1037 dated 28 June 2019 in the sum of $13,962.58. The transcripts establish that the Tribunal Member asked the appellant to tell her which of the quotes she was relying on.
We find that the Tribunal Member asked the appellant which of the three quotes that she was relying on and was told by the appellant, in her version of the transcript, that she would accept the Vertigo $13,000.00 quote. In the respondent's version of the transcript the appellant stated that she would go with the Vertigo's quote. Faced with the fact that there were two (2) quotes from Vertigo roofing in evidence, the Member then asked: 'the one that was given to you for $13,962?'
We do not regard this question as pressuring or rushing the appellant to elect to rely on the Vertigo quote for $13,962.58. The appellant in conducting her own case was in a position to tell the Member which quote she relied on and in her version of the transcript, she did just that.
Based on the transcript evidence of what occurred at the hearing, we do not accept that the Tribunal Member pressured or rushed the appellant to elect to rely on the quote. Nor is there any evidence that the Tribunal Member 'brow beat' the appellant or became annoyed with her. As a result, we decline to grant leave to appeal on this ground.
In submitting that the decision was not fair and equitable, the appellant also submits that the respondent's expert was biased and had a conflict of interest because he also acts as a loss adjuster for the respondent's insurer.
The appellant has not developed this ground of appeal in her submissions, and in particular has not stated that she was denied the opportunity of cross examining the respondent's expert to put to him her view that his evidence was biased and unreliable because he had a conflict of interest, in whatever way she thought was the case.
The appellant's Grounds of Appeal refer to the fact that during a break in the proceedings she overheard a conversation between the respondent's representatives and their expert which she considered to be unflattering to her family and which shocked and upset her. We do not accept that this incident which occurred outside the hearing resulted in the appellant being denied procedural fairness, such that the Tribunal decision was not fair and equitable.
The transcript provided by the respondent sets out the passages it relies upon to establish that there was not a lack of procedural fairness in connection with its expert. These passages establish that the Tribunal Member explored the issue of the respondent's expert having a relationship with the insurer for the respondent. The expert explained that he was engaged to prepare the report in the proceedings by the insurer. He also explained that the respondent was obliged to pay for rectification costs while the insurer was required to pay for 'resultant damage' caused by the roofing defects. In answer to a direct question from the Tribunal Member the respondent's expert stated that he was not acting as an advocate for either the respondent or the insurer and that he was impartial. The transcript that follows is: 'Member: Alright, Miss Thornton do you have any questions for Mr Hovian? Applicant: Other than I believe it's a conflict of interest Member: Right Respondents Expert: I don't understand the basis on which there's a conflict at the end of the day the insurer requires me to provide them impartial advice in terms of construction costs and reasonability of a claim made against them whether it's a material damage claim for a builder making a claim under their own insurance policy or to assess a claim that's made by third party against the insured.'
For the reasons provided we do not accept that the appellant was denied procedural fairness because of a conflict of interest on the part of the respondent's expert. We find that the Tribunal Member explored the issue in sufficient detail obtaining a statement from the expert that he was not acting as an advocate and was impartial. The appellant had the opportunity to cross examine the expert which she did not take up in a detailed way. She also had the opportunity to pursue the issue of a conflict of interest in final submissions.
We decline to grant leave to appeal on the ground that the respondent's expert was biased and had a conflict of interest.
For the reasons provided above we decline to grant leave to appeal on the basis that the hearing was not fair and equitable.

Decision of the Tribunal against the weight of evidence

In order to obtain leave to appeal on the ground that the Tribunal decision was against the weight of evidence, the appellant must establish that she may have suffered a substantial miscarriage of justice, which we have discussed above at [19].
In Collins v Urban the Appeal Panel considered this ground for leave to appeal stating at [77(2)]: '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'
As we understand the appellant's grounds of appeal and submissions in connection with this aspect of her application for leave to appeal, her position is that the Tribunal Member failed to appreciate the full scope of the damage caused to the roof of her premises and the cost of rectifying that damage. In that regard the appellant states that the Tribunal Member did not use the cost estimate sheet prepared by her expert, or have regard to all of the quotes which were in evidence. The appellant also states that the Tribunal Member failed to take into account the evidence given at the hearing by her expert, Mr Craig that the entire length of the roofing was damaged by screws inserted by the respondent.
The Tribunal Member's Reasons for Decision disclose that she accepted that the respondent's actions in cutting back the roofing, installing the guttering and using screws to secure the roofing produced building defects.
The critical extracts of the Tribunal's reasoning in coming to the conclusion submitted to be against the weight of evidence was: 'The applicant included two quotes for full roof replacement in her evidence, and handed up a third during the hearing which was the cheapest of the three. It was to supply and install new roof sheets, flashings, cappings, re-install the gutter, roof sarking and window foam plus labour. The quote is for 130 sqm of roofing and the applicant's expert estimates the roof is 165sqm, however there is also evidence which the Tribunal accepts that the affected (cut) roofing is only 77sqm so this quotation is sufficient to rectify the damage done by the respondent. The applicant is not entitled to a new, improved roof. She is only entitled to have the work she contracted to have done, performed with due care and skill. There is no evidence of how much it would cost to replace the cut sheeting and install suitable gutters so that the contract was performed with due care and skill (including no water penetration).The best the Tribunal has is the $13,962.58 quote from Vertigo Roofing therefore it is this amount that the Tribunal accepts the respondent must pay the appellant: s480. Section 18BA states that the onus of establishing a failure to mitigate loss is on the party alleging the failure. The Tribunal accepts that the cost of rectifying the guttering/screws defect may be less than the Vertigo roofing quote which includes replacing all or a large portion of the roof with new sheeting, but the Tribunal does not accept that the estimated cost of replacing the part of the roof sheeting which previously protruded out over the walls (which were cut back by the respondent) will comply with the contract either. Therefore doing the best it can on the evidence provided the Tribunal allows the applicant the lowest of the three quotes.'
The appellant has provided a transcript of some of her expert's (Mr Craig) evidence: 'Member: I am taking into evidence to Vertigo roofing quote dated 28/06/2019 which is to replace the whole of the roof. It is a third of cost of the Donovan quote. Mr Craig: I've got some confusion with this because he is talking about 130m² and I know for a fact the roof is 165m². Based on a 165m² of roofing. Roof sheeting are approximately $42m² to purchase, which does not leave a lot of money for labour, removal of existing roof sheets, disposal, install new roof sheeting with associated flashings guttering etc. I think at $100m² is a very good quote given the fact that the roof is 165m². I think for $13,000 you would be hard pressed to cover costs. Member: That is still on the basis that the respondent has to pay for the whole of the roof. Even if that quote is in adequate in your opinion, it's still a quote to replace all of the roofing. That's one of the things the Tribunal has to decide.'
The appellant also provided us with the following extracts of the transcript at 3.25 pm: 'The appellant: Do you believe that damage to the roof from screws placed in the valleys and non-compliant screws used have caused damages that can't be repaired? Mr Craig: Yes once again this comes back to the shortening of the roofing sheets. If the roofing sheet had not been cut the screws would not have been needed for the metal angle put in. My answer is yes. The appellant: The screws actually run the full length of the roof, he put screws where it is cut off, but he has also used screws where the bedroom, bathroom/laundry kitchen which is the whole length of the building. He has also used the wrong type of clamps to attach the guttering to the roof Mr Craig: I don't know if there is a wrong or right but they are certainly not tidy. The appellant: That's basically my concern is to establish that the roof is damaged beyond the cut section and the screw damage runs the whole length of the building. The screws can be taken out and roofing screws used but you still have a problem of water pooling around the screws. Mr Craig: Yes that is correct'
We were also provided with a page from the appellant's expert's report in which he assessed the rectification costs associated with re-roofing, extended wall cladding and architrave replacement, which he calculated to be $41,318.65.
It is clear from the paragraphs of the decision to which we have referred at [50] that the Tribunal Member's reasoning was that: 1. she took into account the fact that the Vertigo roofing quote that the appellant had stated in her final oral submissions she relied on, was for 130m² of roofing; 2. the appellant's expert had given an opinion that the roof area was 165m²; 3. there was evidence that the section of the roof that was affected because the respondent had cut it was 77m²; and 4. she accepted the Vertigo roofing quote for $13,962.58 for 130m² of roofing notwithstanding that the cost of rectifying the actual damage caused by the respondent might be less than that quoted by Vertigo.
In considering the application for leave to appeal under this heading, we consider it to be of significance that the appellant informed the Tribunal Member that she was basing the roofing aspect of her case on the Vertigo Roofing quote in the sum of $13,962.00. In our view having taken that step at the first instance hearing, it is now inconsistent for the appellant to seek leave to appeal on the basis that the decision was against the weight of evidence because there were other quotes in evidence which, if accepted, would result in a higher amount being awarded in her favour. We make this finding having rejected the appellant's Ground of appeal that she was pressured or rushed by the Tribunal Member to make a quick decision to accept the Vertigo Roofing quote Q1037 dated 28 June 2019 in the sum of $13,962.58
The fact that the Tribunal Member did not accept the total of the appellant's expert's estimate of rectification costs, does not in itself establish that the decision was against the weight of evidence. In that regard the Tribunal Member did accept the amount of $3,858.00 in connection with architrave replacement which was based on the appellant's expert's estimate. However, we do not accept that in deciding to accept an amount for the cost of rectification based on a quote from a builder as opposed to an expert's assessment, the evidence in its totality preponderated so strongly against the conclusion found by the Tribunal Member that it can be said that the conclusion was not one that a reasonable tribunal member could reach. We are of the view that the Tribunal Member was acting in accordance with conventional principles in accepting an actual quote to perform work, rather than accepting an expert's assessment of the cost of having work done. In so doing the Tribunal Member gave priority to the reality of what a contractor would charge to do work, as accepted by the appellant when she stated that she accepted the Vertigo quote, rather than a hypothetical assessment of that cost, albeit prepared by an experienced person.
There is also the fact that the Tribunal Member did not base the decision on the evidence given by the appellant's expert when he agreed with the appellant that: 'the roof is damaged beyond the cut section and the screw damage runs the whole length of the building. The screws can be taken out and roofing screws used but you still have a problem of water pooling around the screws.'
We understand the appellant's case to be that the decision was against the weight of evidence because insufficient weight was given to the evidence that 'the screw damage runs the whole length of the building'. As stated at [54] there was evidence that the affected part of the roof was 77m² and in her decision the Tribunal Member took the view that even if the roof area was 165m², the quote she was accepting allowed for 130m² of roofing which allowed for a greater measure of rectification having regard to the evidence that 77m² of the roof was affected by the respondent's work.
Having regard to the factors referred to above, we are unable to agree that the evidence in its totality preponderated 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.
It follows that we refuse leave to appeal on this ground.

Significant new evidence has arisen

As stated above, the appellant requires leave to pursue an appeal based on the ground that significant new evidence is now available that was not reasonably available at the time of the hearing.
The appellant seeks to introduce a new quote from Donovan Building Group, a Cost and Losses sheet, and a revised mud map. The appellant also sought to amend her Appeal to introduce as new evidence photographic images of screw damage to the roof areas of bedroom 1, the bathroom, laundry and kitchen areas. She states in connection with the amendment: 'New evidence added now and not at the first hearing because I did not believe it was needed at the time to prove the extent of defects/damages to the roofing sheets'
Appeal Panel cases concerning leave to appeal on this ground were considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. That decision and the authorities referred to establish at [40] that in order to obtain leave to appeal because the appellant may have suffered a substantial miscarriage of justice because significant new evidence is now available that was not reasonably available at the time of the hearing, the test is whether the photographs and other material the appellant seeks to rely upon were unavailable because "no person could have reasonably obtained the evidence", not because the appellant was unaware of the need to do so.
An application for leave to appeal because significant new evidence is now available that was not reasonably available at the time of the hearing is a narrow ground for leave to appeal which does not allow the introduction of new evidence, the desirability of which becomes apparent after the first instance proceedings are concluded and the Tribunal decision handed down.
The appellants submissions indicate that the photographs the appellant now seeks to rely upon were not available at the time of the hearing because the appellant did not believe that they were needed, not because no person could have reasonably obtained them at the time of the hearing. The appellant has also not explained why the new quote from Donovan Building Group, the Cost and Losses sheet, and a revised mud map, both prepared by her were unavailable because no person could have reasonably obtained that evidence at or before the hearing. It seems clear to us that this evidence falls into the category of new evidence, the desirability of which has become apparent after the first instance proceedings were concluded and the Tribunal decision handed down.
For these reasons we refuse leave to appeal on this ground.

The costs decision

As stated the Tribunal Member dealt with the costs of the proceedings in a costs decision dated 20 March 2020 in which the parties were ordered to bear their own costs. The 22 January 2020 decision found that the appellant was obliged to establish 'special circumstances' pursuant to s60 of the CAT Act. The parties provided submissions on 'special circumstances', the appellant failing to persuade the Tribunal Member that special circumstances existed to justify a costs order in her favour under s60.
On 22 January 2020 the Tribunal Member stated the following in connection with costs. 'The applicant applies for her legal costs. She must prove special circumstances exist that warrant an award of costs: see s.60 Civil and Administrative Tribunal Act 2013. The respondent may apply for its costs if, for example, it offered the applicant more than she received by these orders and she rejected that offer. Both parties agree the Tribunal should resolve the question of costs on the papers, that is without another hearing. The Tribunal agrees. Therefore the Tribunal orders: 2. Pursuant to s.50 of the Civil and Administrative Tribunal Act 2013, the Tribunal dispensing with a hearing on costs. 3. Either party who seeks an order for legal costs must make that application by filing and serving it by 5 Feb 2020. 4. If a cost application is made the other party may provide submissions responding to that cost application by 19 Feb 2020. 5. Parties to include any evidence (such as written offers or affidavits) with their submissions or application for costs.'
The Tribunal Member also stated in her Reasons for Decision: 'The applicant lodged her application on 5 Sept 2019 seeking a money order for $38,088 (plus costs). She subsequently sought $38,714.28 as per the Donovan Quote in her evidence. By the end of the hearing she was claiming $3,858 for the architraves defect (Appendix A to her expert's report) and $13,962.58 as per the Vertigo Roofing quote to replace the roof (or at least 130 sqm of the 165 sqm total). This is a total of $17,820.58. The ultimate claim is therefore under $30,000. This amount is what the applicant claims is the rectification costs of the defective work performed by the respondent.'
The Tribunal Member's reasons set out the basis upon which she found that the appellant's claim was less than $30,000.00. In that regard the Tribunal Member's finding was based on a consideration of what the appellant's position was 'by the end of the hearing'. It is clear that based upon that finding, the Tribunal Member proceeded to find that the appellant was required to establish 'special circumstances' before a costs order could be made in her favour under s60 of the CAT Act.

The appellant's submissions

The appellant was granted leave to amend her Notice of Appeal to include an appeal against the Tribunal Member's costs decision. The appellant's costs submissions state the costs should have been determined pursuant to s60 of the CAT Act. She also states that despite s60, Regulation 38(b) could have been applied since the amount of the claim was over $30,000.00, the disputed amount being $38,714.28. We understand the applicant to be referring to Rule 38(2)(b) of the Civil and Administrative Tribunal Rules 2014. Submissions were also made regarding the nature and complexity of the applicant's case in connection with s60(3)(d) of the CAT Act and that she was required by Tribunal directions to provided expert evidence in support of her case.
The respondent's costs submissions state that Rule 38(2)(b) of the Civil and Administrative Tribunal Rules does not apply to the costs of the proceedings at first instance because during the hearing the appellant reduced her claim to below $30,000.00.
The respondent also submits that the appellant failed to establish that special circumstances existed under s60(3)(d) of the CAT Act. It states that complying with Tribunal directions to provide expert evidence is not a special circumstance under s60 of the CAT Act.
Ordinarily costs in the Tribunal are subject to s60 of the CAT Act. S60(1) states the starting position to be that each party to Tribunal proceedings is to pay his/her/its own costs. That position is subject to the Tribunal having the discretion to order costs if a party can establish that special circumstances exist which warrant an award of costs.
Rule 38 of the Civil and Administrative Tribunal Rules has application if proceedings are allocated to the Consumer and Commercial division of the Tribunal. The rule states: 'This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if: (a) the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10 (2) of Schedule 4 to the Act in relation to the proceedings, or (b) the amount claimed or in dispute in the proceedings is more than $30,000.'
Part 4 of the CAT Act deals with Practice and Procedure. Section 60 of the CAT Act is in Part 4. Section 35 of the CAT Act which is also in Part 4 states: 'Each of the provisions of this Part is subject to enabling legislation and the procedural rules.'
We find that s35 of the CAT Act makes it clear that s60 of the CAT Act is subject to Rule 38.
The appellant's proceedings at first instance were brought under the Home Building Act 1989. Pursuant to section 3 of Schedule 4 of the CAT Act, proceedings under the Home Building Act are allocated to the Commercial and Consumer Division of the Tribunal.
If the amount claimed by or put into dispute by the appellant at first instance exceeded $30,000.00, then because the proceedings were allocated to the Commercial and Consumer Division of the Tribunal, Rule 38 should have applied to the appellant's costs application and the Tribunal Member would have been unconstrained by the need to find the existence of special circumstances in order to make a costs order.
The issue to be considered is, at what point does the Tribunal determine whether 'the amount claimed or in dispute in the proceedings is more than $30,000'. Depending upon the answer to that issue, the question arises whether the Tribunal Member was correct in finding that the appellant's claim was 'under $30,000.00'.
As observed by the Tribunal Member, the appellant's application sought an order that the respondent carry out work or services to the value of $38,088.00.
In considering the meaning to be given to the words 'the amount claimed or in dispute in the proceedings' we first consider what is meant by the word 'the proceedings'. In Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 an Appeal Panel observed at [33]: 'The word "proceedings" is used extensively in the NCAT Act but there is no definition of that term in the NCAT Act or in the Interpretation Act 1987 (NSW) (the Interpretation Act).'
After considering numerous provisions of the CAT Act and the Civil and Administrative Tribunal Rules the Appeal Panel stated at [37] : 'These examples from the NCAT Act and the NCAT Rules demonstrate that "proceedings" refers to the process set in motion, or commenced, by lodging an application or notice of appeal. That process includes the steps taken by the Tribunal to hear and determine whether to grant the relief sought in the application or notice of appeal, as well as any interlocutory or ancillary steps. Proceedings are defined by the subject matter raised in the application or notice of appeal.'
The passage extracted above provides strong support for finding that the amount claimed or in dispute in the proceedings means the amount claimed in the application by which the appellant commenced her case in the Tribunal.
Bonita v Shen [2016] NSWCATAP 159 is consistent with the position stated in Allen v TriCare (Hastings) Ltd. In Bonita v Shen at [37] the Appeal Panel considered Rule 38 stating: 'In the present case, which is proceedings under the RL Act, the amount claimed in the application was $122,166.76. This amount is greater than $30,000.00 (as was the amount of the final award when interest was taken into account). Accordingly, as the amount claimed or in dispute is more than $30,000.00 and the proceedings are for the exercise of the function of the Tribunal allocated to the Consumer and Commercial Division of the Tribunal, r38(2)(b) applies to the present proceedings.'
In Carlson v ARA Engine Reconditioning Pty Ltd (No 2) [2020] NSWCATAP 39 an Appeal Panel considered the position in circumstances where an appellant commenced proceedings seeking an amount less than $30,000.00, but after the respondent's evidence was filed, his claim exceeded $30,000.00. At [27] the Appeal Panel stated: 'Mr Carlson's solicitor has submitted that the original claim "was for a figure of $10,771" and claims that the change in the amount sought by Mr Carlson was "a direct result of the position [ARA Engine Reconditioning] took" in the proceedings below. It is correct that Mr Carlson's originally claimed $10,771. However, regardless of the reason he increased his claim, by the time the matter came before the Tribunal for hearing, the amount claimed in the proceedings was more than $30,000. Rule 38 therefore applied to costs of the Tribunal proceedings.'
In Carlson v ARA Engine Reconditioning Pty Ltd (No 2) the Appeal Panel found that the relevant time to consider the 'the amount claimed or in dispute' in the proceedings was at the time the matter came before the Tribunal for hearing.
Based on the authorities that we have discussed above, we are of the view that the amount claimed or in dispute in the proceedings is to be determined by the amount claimed in the application, or the amount claimed at the commencement of the hearing. We find that there is no authority to support the position taken by the Tribunal Member at first instance that the amount claimed or in dispute in the proceedings is for the purposes of rule 38(2)(b) of the Civil and Administrative Tribunal Rules to be determined by reference to the amount that is claimed by an applicant at the end of the hearing.
We are also of the view that the amount claimed or in dispute in the proceedings is, at least in these proceedings, to be understood as referring to something different to the amount that the appellant is said to have ultimately opted for or agreed after the hearing process had come to an end. It is relevant that the appellant contends that the acceptance of the quote which had the effect of diminishing the amount sought, was influenced by her being 'pressured' and 'rushed' by the Tribunal Member.
For the Reasons stated in the preceding paragraphs, we find that the Reasons for Decision of the Tribunal Member on 22 January insofar as they related to costs, disclose an error of law. We find that the Tribunal Member's costs decision dated 20 March 2020 was wrong in law as it proceeded on the basis that the appellant's costs application was to be determined on the basis of s60 of the CAT Act.
Pursuant to s81(d) of the CAT Act we set aside the Tribunal Member's costs decision dated 20 March 2020 as it was based upon the incorrect finding by the Member that s60 of the CAT Act applied to the costs application.
S81(d) of the CAT Act also allows us to substitute another decision for the costs decision that has been set aside. In substituting another decision for the costs decision, we are entitled to exercise all of the functions conferred by the CAT Act on the Tribunal at first instance.
We have had the benefit of the parties' submissions on the costs decision and also the Reasons provided by the Tribunal at first instance when making the costs decision. We have decided that the most efficient and just approach is to make a costs decision in substitution for the costs decision made by the Tribunal at first instance.
First, we find that the amount claimed or in dispute in the appellant's claim at first instance, as stated in her application was for an amount in excess of $30,000.00, namely $38,088.00 as stated by the Tribunal Member. We find that Rule 38 (2)(b) of the Civil and Administrative Tribunal Rules was thereby satisfied, with the result that we are unconstrained by the need to find the existence of special circumstances in order to make a costs order
Secondly we find that in obtaining an order in her favour in the sum of $17,820.58, the appellant was the successful party in the first instance proceedings. There is no suggestion that there was conduct on the part of the appellant in the proceedings that would disentitle her to a costs order in her favour. Nor is there any suggestion that offers were made to her to resolve the proceedings which she unreasonably refused.
We find in accordance with the principles that were stated in Oshlack v Richmond River Council [1998] HCA 11, 193 CLR 72 that the appellant is entitled to her costs of the proceedings at first instance on the ordinary basis.
The appellant has provided a hand written statement of her costs and disbursements in the first instance proceedings which total $12,172.77. The most substantial element of her costs is an amount of $7,835.00 paid or payable to her expert witness Mr Craig of Tyrrells Building Inspection for the preparation of an expert report and attending at the hearing to give evidence on her behalf.
S36(1) of the CAT Act states that the guiding principle for that Act and the Civil and Administrative Tribunal Rules in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
We refer to the Court of Appeal decision in Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294 in which Beazley P, Meagher and Payne JJA relevantly stated at paras 12 -18: [12] The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002) NSWCA 213 at 742-723 (21)-(22); Beach Petroleum NL v Johnson (No 2)(1995) 57 FCR 119 at 123. [13] The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamad v New South Wales (2011] NSWCA 375 at (818) per Beazley JA (Giles and Whealy JJA agreeing). [14] A "broad brush" approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; (1999) FCA 673 at 5 (16); Penson v Titan National Ply Ltd (No 3) (2015] NSWCA 121 at [7]. [15] The courts have typically applied a discount in assessing costs on a gross sum basis: Hamad v New South Wales at (814]. ... [18] The Court is satisfied that the total costs of this litigation will become even more disproportionate if the costs are referred for assessment and a lump-sum costs order is not made. The reasoning in Hamad v New South Wales at [816]-[817] is apposite.
We are satisfied that the appellant has already gone to some cost to bring the application and that formal assessment would only add to the costs burden on the respondent and the costs will become even more disproportionate if they are referred to assessment. Further as stated above, the costs of the solicitors are quite minor and are mainly made up of the experts' costs and assessment would lead to a disproportionate amount for costs.
In order to resolve the appellant's rights to costs in the first instance proceedings as quickly as possible and to avoid the further expenditure of costs that would be involved in a costs assessment, we have determined that the respondent should pay the appellant the sum of $11,446.77 as her costs of the first instance proceedings. We have disallowed $726.00 from the professional fees charged by her solicitors for acting on her behalf in connection with her dispute with the respondent. This deduction allows for the difference between party/party costs and solicitor /client costs, or to put it in language more understandable by non-lawyers, the fact that a litigant does not ordinarily recover all her legal fees, even if successful.
We will make an order that the respondent must pay the appellant the sum of $11,446.77 being her costs of the proceedings at first instance. We will also make an order pursuant to s 50(2) of the CAT Act dispensing with the need for a hearing on costs given that the decision on costs can in our view be given in the absence of the parties as they have had the opportunity to file written submissions on the costs appeal.

Orders 1. A hearing on the costs appeal is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The costs decision made on 20 March 2020 in the proceedings at first instance is set aside. 3. Desire Constructions Pty Ltd must pay Leanne Thornton the sum of $11,446.77 being her costs of the proceedings at first instance. 4. Leave to appeal is refused.

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: 19 June 2020

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