Touma v Colantuono

NCAT Appeal Panel|2021-05-03

Introduction

This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 22 January 2021.
The Tribunal's decision concerned two applications brought under the Home Building Act 1989 (the HB Act). The first was brought by Mr Colantuono against ST Carpentry & Constructions, a business name under which Salim Touma previously traded: HB 20/27054. The second was an application in the nature of a cross-claim brought by Mr Touma against Mr Colantuono: HB 20/32249.
The appeal is against the orders made in HB 20/27054 only.
The second appellant, ST Carpentry & Constructions Pty Ltd (generally referred to as "the company" in these reasons for decision) was not a party to either of the applications. It was joined to the appeal proceedings at Mr Touma's request because Mr Touma claims that the company should have been the respondent in Mr Colantuono's application, as it was the contracting party.
For the reasons set out below, we have decided to extend time for the appeal to the extent that it is necessary to do so, refuse leave to appeal and dismiss the appeal.

Background

The background to the dispute between the parties is set out in documents provided to the Tribunal and on the appeal.

Tribunal proceedings and decision

Mr Colantuono's application was lodged with the Tribunal on 23 June 2020. A Notice of Hearing was sent to the parties on 26 June 2020. Procedural directions for the filing and exchange of documents were set out in the notice. Relevantly, these directions required Mr Colantuono to provide any documents he intended to rely on to the Tribunal and the other party within 14 days of the date of the notice ( that is, by 10 July 2020). Mr Touma was required to provide the material on which he intended to rely within 28 days of the date of the notice.
The matter was listed for directions on 20 July 2020. Mr Colantuono and Mr Touma attended the hearing by telephone, in accordance with the Tribunal's current practice necessitated by the Covid-19 pandemic. At that directions hearing, the Tribunal made the following directions and set out reasons for having made the directions and a summary of what the parties had been told at the directions hearing: On 20-Jul-2020 the following orders were made: 1. By Determination of member, on 20 July 2020 the hearing was adjourned to a date to be fixed by the Registrar. 2. The respondent's name ST CARPENTRY AND CONSTRUCTIONS, is amended to Salim Touma t/as ST CARPENTRY AND CONSTRUCTIONS. 3. Should the Respondent intend to bring a cross application, the Respondent shall on or before 27-Jul-2020 lodge an application with the Tribunal specifying the orders sought. 4. Registry is directed to list applications HB20/27054 and any cross claim filed by Mr Touma together. 5. Both parties must file and serve the evidence in support of their own claim by 31 August 2020. 6. Both parties may file and serve the evidence they rely upon to oppose the claim against them by 28 Sept 2020. Reasons for decision: The applicant sought an urgent hearing and sent in 20 separate emails with bits and pieces of evidence attached by 10 July. Not all of those attachments were served on the respondent. The respondent did not file any evidence in accordance with the directions which called for his evidence by 17 July 2020. The parties are very far apart and the Tribunal urged them both to get legal advice. Sections 18B, 18BA and the need for expert evidence and for a cross claim were explained. The parties agree they were parties to a contract but there may not be agreement about the terms of this contract. Both must address this in their evidence. The applicant refused the respondent access to site before the works were complete, and claims this is when the contract was terminated. The respondent claims he is ready and willing to return to site to complete the works and rectify defects (and also denies there are any defects) but the applicant refuses him access. The applicant denies the respondent has been willing to return to site but agrees he refuses to have the respondent undertake further work for him. The applicant must address the preferred outcome in his evidence s.48MA Home Building Act. Both parties must address the status of the contract in their evidence, that is, whether they say and on what basis, the contract is terminated or ongoing. Tribunal explained both parties' evidence must be in a single PDF document or in a single folder with page numbers, both filed in the Tribunal and served on the other side. This includes all documents the applicant has emailed the Tribunal thus far. The applicant has not yet quantified his claim. The applicant agrees any money order to rectify defects and/or complete the works will need to be offset by $5,800 remaining in the contract to pay the respondent. The respondent claims he is owed $8,000 and Tribunal explained if he does not agree with the $5,800 offset amount he needs to file a Home Building Claim himself (i.e. a cross claim). The applicant claims the matter is urgent but asked for 6 weeks to put on his evidence which is an appropriate length of time. Applicant told to get legal advice about rectifying any unsafe aspects of the build before the final hearing, but emphasised he should get advice from his lawyer before doing this and including in his evidence all proof of payments and what work was done.
Mr Touma lodged a cross-application on 28 July 2021. He named himself and not ST Carpentry & Constructions Pty Ltd as the applicant. This application and Mr Colantuono's application were listed for further directions on 6 October 2021. Again, Mr Colantuono and Mr Touma attended the hearing by telephone. The following directions were made: 1. The hearing is adjourned to a date to be fixed by the Registrar. 2. Time for compliance with order 5 made on 20 July 2020 for the applicant in proceedings HB 20/32249 is extended until 13 October 2020. 3. Time for compliance with order 6 made on 20 July 2020 is extended until 27 October 2020. 4. The applicant in proceedings HB 20/27054 and the applicant in proceedings HB 20/32249 are to provide to the respondent in those proceedings and the Tribunal, either in person or by post, and by email, their outline of submissions in chief, by 3 November 2020. 5. The respondent in proceedings HB 20/27054 and the respondent in proceedings HB 20/32249 are to provide to the applicant in those proceedings and the Tribunal, either in person or by post, and by email, their outline of submissions in reply by 10 November 2020. 6. The parties are to advise each other of any witnesses required for cross-examination by 17 November 2020. 7. If a party requires an extension of time to comply with these directions, an application should be made in writing to the Registrar no later than the day prior to the date of submission of documents to the Tribunal.
The applications were then listed for final hearing on 19 January 2021. The Tribunal made orders and published reasons for decision on 22 January 2021. The hearing was conducted by telephone.
In the reasons for decision, the Tribunal noted that Mr Colantuono represented himself and that initially Mr Touma's friend Ms Serafino (a real estate agent) appeared as his representative. However, her telephone line dropped out and Mr Touma told the Tribunal that "he was happy to proceed with the hearing and represent himself".
The Tribunal further noted problems with the documentary evidence. In relation to Mr Touma's evidence, the Tribunal stated: 16. The respondent [that is, Mr Touma] had not filed (or served) any documents in accordance with previous Tribunal directions. He and Ms Serafino stated the respondent had emailed a written statement to the Tribunal, and copies of invoices for the cost of timber. The email had been sent by the respondent to Ms Serafino, and Ms Serafino had sent the email to the Tribunal (according to the respondent and Ms Serafino). 17. The Tribunal requested a further copy of the statement and invoices be emailed to the Tribunal and the applicant at the hearing. The respondent stated he did not have a copy of the email on his telephone. Ms Serafino sent through a further copy of the email she had previously sent. This only contained a brief written statement of the respondent disputing the applicant's version of events. No invoices for the cost of timber or materials purchased by the respondent in respect of the works were sent.
The Tribunal noted that Mr Touma sought an adjournment of the hearing on the basis that the invoices had not been sent. The Tribunal refused the adjournment, stating: 18. … The respondent then sought an adjournment because the invoices had not been filed and served. The Tribunal pointed out that there had been previous directions for both parties to file and serve evidence, and asked for the respondent to explain why he had not complied with directions and why he sought an adjournment. The respondent stated he didn't understand the directions that he was required to file with the Tribunal and serve on the respondent his documents. The Tribunal determined that the adjournment request was refused, applying the principles in Hanson v Metricon Homes Pty Ltd [2019] NSWCATAP 133 at [25]-[28] and the hearing proceeded.
The Tribunal relevantly found: Contract Between the Parties 25. There was a contract to perform residential building work. The respondent had not complied with the provisions of s 7 of the HB Act and the builder was not suitably licenced, because the works involved supervision and co-ordination beyond the scope of the license as a carpenter. The work also involved tiling and waterproofing works in respect of the bathroom/laundry area and brickwork. The value of the contract was above $20,000 and the respondent did not obtain home warranty insurance, as he was required to do under the HB Act. Amount of Monies Paid for Work 26. The Tribunal is satisfied on the documents and oral evidence of the applicant that the applicant had paid the respondent $19,500 for the works, either to the respondent direct or to sub-contractors in respect of the scope of works under the contract between the applicant and respondent. 27. The respondent asserted in oral evidence that he did not believe he was paid as much as the applicant stated, but provided no tax invoices or other records to verify what had been paid. Termination of the Contract 28. The Tribunal is satisfied that the conduct of the respondent was a repudiation of the contract by reason of the respondent performing work that had significant defects; the respondent requesting and being paid a deposit of more than 10% prior to commencing work; the work not being done in a timely manner; the respondent and the manner in which the respondent conducted himself on about 31 May 2020 when police were called to property. The applicant accepted this repudiatory conduct by commencing proceedings in the Tribunal. The principles applicable to termination for repudiatory conduct are discussed in DB Homes Pty Ltd v Kes [2019] NSWCATAP 221. Defective Work 29. The Tribunal accepts, based upon the evidence contained in Mr Olleranshaw's report; that the respondent performed defective work in breach of s 18B of the HB Act, applying the principles discussed in Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185. Incomplete Work 30. It is clear that works were incomplete. The pergola framework was in place (although defective) but incomplete, and the eaves were incomplete. 31. In respect of what amount was outstanding under the contract at the date that work ceased in about 31 May 2020, there is insufficient evidence to satisfy the Tribunal that the applicant owed the respondent for work that had been performed but not paid for. In other words, the respondent had been paid $19,500 on a "due and charge" basis. Although the respondent asserted that "90% of the work" had been completed, there is no expert evidence adduced by the respondent to support this and the Tribunal gives little weight to the respondent's subjective opinion as to how much work has been performed. 32. Further, on the issue of quantum meruit (in respect of the respondent's cross application) the Tribunal is not satisfied that there is evidence to establish that the applicant had performed work for which he had not been paid (and such work accepted by the applicant) the fair and reasonable amount of which exceeds the $19,500 paid by the applicant. In any event, the respondent was unlicensed, and the Tribunal is not satisfied it is fair and reasonable under s 94 of the HB Act for the respondent to be able to bring a claim in quantum meruit in any event. Section 48 MA HB Act 33. Under s 48MA of the HB Act, the "preferred outcome" is that a person who performs defective work be ordered by the Tribunal to rectify it (i.e. a 'work order') rather than an award for damages. However, the Tribunal can depart from the "preferred outcome" in appropriate circumstances, relevant principles being discussed in Dixonbuild Pty Ltd v Adams [2020] NSWCATAP 190. 34. The respondent is not suitably licensed as a builder; the respondent repudiated the contract; and there is significant animosity between the parties. A work order is not the preferred outcome. Eaves 35. The Tribunal is satisfied on the evidence of the applicant that there was an oral variation to the contract for the respondent to remove and replace eaves. The eaves were removed but not replaced. Assessment of Damages 36. The Tribunal is satisfied that the appropriate scope of works to rectify defects is as set out in Mr Olleranshaw's report, and that the rectification identified is not unreasonable. In accordance with the well-established principles for assessment of damages for incomplete and defective work set out in Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613, the Tribunal awards damages of $25,164.68. Additionally, the Tribunal awards the applicant $2,453 for the cost of rectifying and completing the eaves removed (being the amount paid by the applicant less $770 for the cost of materials that the applicant had agreed to pay in any event). 37. The applicant also seeks the costs of obtaining the expert report of Mr Olleranshaw; filing fee for NCAT; and cost of ASIC search. Such items are legal costs and because the amount claimed or in dispute (exclusive of costs) is less than $30,000, Rule 38 of the Civil and Administrative Tribunal Rules 2013 does not apply. Consequently, the applicant must show "special circumstances" under s 60 (2) of the Civil and Administrative Tribunal Act 2013 to be awarded costs. The Tribunal is not satisfied that "special circumstances" exist to justify a costs order. 38. The applicant further seeks damages for an additional skip bin ($120) and $169 for the cost of hiring a person through 'air tasker' to clean up materials. The Tribunal is not satisfied that there is sufficient evidence to establish loss or that such items do not fall within the assessment of the cost of rectification contained in Mr Olleranshaw's report. Conclusion 39. The respondent is to pay the applicant $27,617.68 in Matter HB 20/27054. In Matter HB 20/32249 the application is dismissed.

Scope and nature of internal appeals

Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: s 80(2) NCAT Act.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 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).
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered 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.
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel stated at [84] that 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 interests of justice for it to be reviewed.

Submissions and evidence

In deciding the appeal, we have had regard to the following:

The Notice of Appeal and attached documents lodged on 23 February 2021;
The Reply to Appeal lodged on 8 March 2021;
Procedural directions made by the Tribunal below and at call over;
The Tribunal's reasons for decision;
The applications made by both parties in the Tribunal;
The oral submissions made by and on behalf of the parties.

Mr Touma filed affidavits dated 1 March 2021 and 19 March 2021, as well as submissions filed on 27 April 2021. A further copy of the 1 March 2021 affidavit was filed on 27 April 2021.
Mr Touma also filed material that he sought to rely on as new evidence. This material is identified in the Notice of Appeal as: 1. Text messages exchanged between the parties, some of which were attached to the Notice of Appeal and some of which were provided later, attached to Mr Touma's affidavits; 2. Documents from the Australian Securities and Investments Commission (ASIC) showing that the company was registered on 17 January 2021 and Mr Touma's business name was cancelled on the same day; 3. A medical report dated 19 February 2021 from Dr Michael Pham, which states that Mr Touma attended Dr Pham's surgery on that date to follow up liver tests "that were done last year". Dr Pham states that the tests "show evidence of most likely a mild fatty liver"; 4. Tax invoices in relation to the cost of timber and the cost of materials. A tax invoice from J3 Holdings Pty Ltd t/as Stylish Living for the supply of laundry cabinetry and hinges and a tax invoice from Sydney Timber & Hardware for the supply of timber were later provided.
Mr Colantuono filed affidavits dated 5 March 2021 and 30 March 2021. The affidavit of 5 March 2021 responded to Mr Touma's affidavit of 1 March 2021 and his affidavit of 30 March 2021 responded to Mr Touma's affidavit of 19 March 2021. With the latter affidavit, Mr Colantuono filed material that had been filed in the Tribunal proceedings below.
We have considered Mr Touma's affidavits and the new material Mr Touma filed in the appeal to the extent that it is relevant to the grounds of appeal.
Ms B Abou-Hamad, solicitor, appeared for Mr Touma at the appeal hearing. Mr Colantuono was self-represented.

Notice of Appeal

The Notice of Appeal was stamped as having been lodged on 23 February 2021, which is outside the 28 day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (the Rules).
On its face, the appeal was lodged outside of time and requires an extension of time to proceed. At the hearing, Ms Abou-Hamed submitted that the appeal was lodged at the Tribunal's Penrith Registry on the last day of the appeal period (19 February 2021) but the Tribunal's computer system was not working, so the appeal fee could not be paid.
In this regard, Ms Abou-Hamad referred to correspondence dated 30 March 2021, said to enclose a letter dated 19 February 2021 confirming that the Notice of Appeal was filed on that date. However, the file indicates that no letter was attached to this correspondence.
There is some support for Ms Abou-Hamad's position in that the Notice of Appeal was apparently signed on 19 February 2021. In view of the relatively short delay between 19 February 2021 (a Friday) and 23 February 2021 (the following Tuesday) and the lack of any prejudice to Mr Colantuono, we have determined to extend time for lodging the appeal to the extent that it is necessary to do so.

Grounds of Appeal

The grounds of appeal specified in the Notice of Appeal are: 1. The decision of the Tribunal under appeal was not fair and equitable. 2. The Tribunal failed to take into consideration the directions given by the Review Applicant that he did not understand the directions that he was required to file with the Tribunal and serve on the respondent his documents. 3. The Tribunal failed to take into consideration the request made by the Review Applicant for an adjournment so he can file and serve all documents / evidence he intends to rely on and proceeded with the hearing. 4. The Tribunal failed to give the Review Applicant an opportunity to file and serve all documents / evidence he intends to rely on when sought. 5. The Tribunal failed to take into consideration the severe loss caused to the Review Applicant's business due to the respondent's unjust behaviour. 6. The Tribunal failed to take into consideration that the Review Applicant is an employee of ST Carpentry & Construction Pty Ltd and proceeded with the making of an order against the Review Applicant T/as ST Carpentry & Constructions. 7. The Tribunal erred in making an Order against the Review Applicant t/as ST Carpentry & Constructions. 8. The conduct of the Tribunal was unjust, unfair and in denial of justice.
Mr Touma also seeks leave to appeal on the three bases articulated in cl 12, Schedule 4.
At the appeal hearing, Ms Abou-Hamad agreed that Grounds 1, 2, 3, 4 and 8 are in effect the same ground of appeal; that is, that the Tribunal denied Mr Touma procedural fairness because it refused the application for an adjournment. She stated that Grounds 6 and 7 are also the same ground; that is, that the Tribunal erred in making an order against Mr Touma because the company and not Mr Touma was the contracting party. Ms Abou-Hamad could not articulate a question of law relevant to Ground 5.
Ms Abou-Hamad confirmed that Mr Touma sought leave to appeal on the three grounds specified in cl 12 of Schedule 4 of the NCAT Act. She also confirmed the application for leave to appeal on the basis that the decision is not fair and equitable is in effect an application on the basis that Mr Touma was denied procedural fairness.

Issues

The issues to be determined in this appeal are: 1. Did the Tribunal deny Mr Touma procedural fairness in refusing his adjournment application? (Grounds 1, 2, 3, 4 and 8) 2. Did the Tribunal err in making an order against Mr Touma rather than against ST Carpentry & Constructions Pty Ltd? (Grounds 6 and 7) 3. Did the Tribunal err in failing to take into consideration "the severe loss caused to the appellant's business due to the respondent's unjust behaviour". (Ground 5) 4. Should Mr Touma be granted leave to appeal?

Did the Tribunal deny Mr Touma procedural fairness in refusing his adjournment application? (Grounds 1, 2, 3, 4 and 8)

Ms Abou-Hamed submitted that the refusal to adjourn the hearing was a denial of procedural fairness because Mr Touma told the Tribunal that he did not understand that he was supposed to provide documents to the Tribunal and the other party. Ms Abou-Hamed submitted that on being told by Mr Touma that he did not understand that he was supposed to provide documents to the Tribunal and the other party, the Tribunal should have adjourned the hearing and given Mr Touma an opportunity to provide documents.
Ms Abou-Hamed submitted that Mr Touma did not understand the requirement to provide documents to the Tribunal and the other party because he is not a lawyer and because he had not been to the Tribunal previously.
During the appeal hearing, we noted the Tribunal's procedural directions, including the notes made by the Tribunal set out in the Notice of Order for the directions hearing on 20 July 2020, with a view to obtaining oral submissions about the apparent effect of these directions. Ms Abou-Hamad stated that she did not have a copy of the directions. We therefore read aloud relevant parts of the Notices of Order which set out the directions.
After obtaining instructions, Ms Abou-Hamad claimed that her client had not received the Tribunal's procedural directions. When asked why this had not been articulated in the grounds of appeal, Ms Abou-Hamad claimed that it was raised in Ground 3. Ms Abou-Hamad confirmed that notwithstanding the reference to "directions previously made by the Tribunal" in the Tribunal's reasons for decision, in preparing the appeal she had not asked her client for a copy of the directions or asked for a copy of the directions from the Tribunal.
We are not persuaded that Mr Touma did not receive the Tribunal's directions.
First, we consider that if that were the case, it would have been specifically stated in the grounds of appeal and in one or more of Mr Touma's affidavits. We do not accept that this is articulated in Ground 3. In our view, this submission is inconsistent with the manner in which Ground 2 is articulated: that is, that Mr Touma "did not understand the directions that he was required to file with the Tribunal and serve on the respondent his documents". If Mr Touma had not received the directions, there would have been nothing for him to fail to understand.
Second, the submission that Mr Touma had not received the Tribunal's directions is inconsistent with Mr Touma's affidavit of 19 March 2021 in which he states at [31], in response to Mr Colantuono's affidavit of 5 March 2021, that: 3. In reply to this paragraph I say that throughout my life, I have never attended any Court of Tribunal. It was my first appearance at the NSW Civil & Administrative Tribunal. At most times, I did not understand the directions of the Tribunal Member. 5. In reply to the first part of this paragraph ….. I reiterate the contents of paragraph 3 above and confirm it was my first appearance at the NSW Civil & Administrative Tribunal and I did not understand the directions of the Tribunal Member … (Emphasis added)
In our view, if Mr Touma had not received any directions from the Tribunal, he would have said so and would not instead have said that he did not understand the directions.
Third, the submission is inconsistent with the record of the hearing before the Tribunal on 20 July 2020. As noted above, in referring to Mr Touma's failure to comply with directions made by the Tribunal, the Tribunal recorded that Mr Touma and his representative Ms Serafino stated that Ms Seraphino "had emailed a written statement to the Tribunal, and copies of invoices for the cost of timber". According to the reasons for decision, Mr Touma and Ms Seraphino stated that "the email had been sent by the respondent to Ms Serafino, and Ms Serafino had sent the email to the Tribunal". If Mr Touma had not received the Tribunal's directions, it is unclear why Ms Seraphino would have sent anything to the Tribunal on his behalf.
Fourth, the submission is inconsistent with what occurred at the directions hearing on 6 October 2020, when the Tribunal extended time to comply with orders made on 20 July 2020. It is reasonable to assume that the time for Mr Touma to comply was extended at the request of one of the parties. If Mr Touma made such a request, it is implausible that he had not received the directions made on 20 July 2020.
Fifth, as noted above, Mr Touma filed a cross-application on 28 July 2020, which is broadly consistent with order 3 made on 20 July 2020 requiring any cross-application to be filed by 27 July 2020. It is unclear why this would have been done if Mr Touma had not received the Tribunal's directions.
We conclude that, contrary to Ms Abou-Hamad's submission, Mr Touma did receive the Tribunal's directions.
As to Mr Touma's alleged failure to understand the Tribunal's directions, this does not rise above the mere assertion to this effect made in Mr Touma's affidavit and by Ms Abou-Hamad in her submissions. No evidence has been provided in support of that assertion. There is no evidence, for example, that Mr Touma suffers from a cognitive impairment that precluded him from understanding what was required of him. Nor is there any evidence that Mr Touma has linguistic difficulties which prevented him from understanding the Tribunal's directions. In any event, Mr Touma appeared at both of the directions hearings by telephone and had an opportunity to clarify any matters that were not clear.
It was submitted that Mr Touma did not understand the Tribunal's directions because he is not a lawyer and this was the first time he had been involved in Tribunal proceedings. However, most parties who appear in the Tribunal are not lawyers and a significant number of parties only ever appear before the Tribunal on one occasion. Mr Touma's lack of legal training and lack of experience in litigation does not explain his alleged lack of understanding of what he was expected to do. In our view, the directions made at the directions hearings on 20 July and 6 October 2020 are in relatively simple language and straightforward. Further, the reasons published with the 20 July 2020 directions specifically record that the Tribunal explained the format in which documents were to be provided.
We note also that at the directions hearing on 20 July 2020, the Tribunal records that it urged the parties to obtain legal advice. We asked Ms Abou-Hamad why, if Mr Touma did not understand what he was supposed to do, he did not seek legal advice at that time. Ms Abou-Hamad referred to the medical report filed in the appeal and submitted that Mr Touma had a medical condition. We have noted the contents of that medical report above. We accept that Mr Touma had liver tests last year which have led to an apparently tentative diagnosis: that is, "most likely a mild fatty liver". The report does not suggest that either the symptoms that led to the tests being carried out or the diagnosis (apparently made in February 2021) caused Mr Touma to suffer from any cognitive impairment or any major physical impairment. Given that Mr Touma was able to seek medical advice about a medical problem, we conclude that had he chosen to do so, he could have sought legal advice about a legal problem.
Overall, Mr Touma has not established that he did not understand the Tribunal's directions. The inference open to us and the finding that we make is that he chose not to comply with them.
When refusing the adjournment application, the Tribunal cited the Appeal Panel in Hanson v Metricon Homes Pty Ltd [2019] NSWCATAP 133 from [25] to [28] (Hanson). While the Supreme Court allowed an appeal from the Appeal Panel's decision in Hanson (see Hanson v Metricon Homes Pty Ltd [2020] NSWSC 401), the Court's judgment turned on the facts of the particular case rather than on the legal principles articulated in the Appeal Panel's decision, which are uncontroversial.
The Appeal Panel in Hanson cited another Appeal Panel decision, Armee v Brealey [2017] NSWCATAP 141 (Armee), on the issue of the circumstances in which a refusal to grant an adjournment may give rise to a denial of procedural fairness. In that matter, the Appeal Panel stated at [121] 121 The Tribunal has the power to adjourn proceedings under s 51 of the Act. The power to adjourn is to be exercised according to the principles set out by the High Court in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46; (2013) 250 CLR 303, French CJ, Kiefel, Bell, Gageler and Keane JJ at 321 [51] (see O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [21]). Procedural fairness may be denied if a decision maker fails to adjourn proceedings where such a failure has the effect of depriving a person of adequately presenting the person's case: see Grozdanov v N&T Buildings Pty Ltd [2015] NSWCATAP 107 at [51]; Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 at [21]-[22]. …
The Appeal Panel in Armee cited another Appeal Panel decision which considered the issue of adjournment applications: O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77. In that matter, the Appeal Panel stated at [20] to [23]: 20 In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46, a unanimous High Court said: "In Aon Risk Services Australia Ltd v Australian National University, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice." 21 That approach is applicable in this Tribunal. Section 36(1) of the Civil and Administrative Tribunal Act 2013 ('the Act') is in relevantly identical terms to s 56(1) of the Civil Procedure Act 2005, the provision considered in the Expense Reduction decision. 22 It follows that a number of principles apply to applications for an adjournment: (1) matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, (2) an application for an adjournment should be seen as the exceptional rather than the ordinary course; (3) where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment 23 Further, there is the effect on the opposing party to consider. In Sayhoun v Owners Corporation Strata Plan 75123 [2014] NSWCATAP 112, an Appeal panel of this Tribunal said at [17], in terms we would adopt: "We are satisfied that the respondent would be prejudiced if an extension of time were granted. That prejudice may be addressed by an award of costs, although we note the remarks of the plurality in Aon Risk Services Aust Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [100] that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants; and their approval (also at [100]) of Bowen LJ's statement in Cropper v Smith [1884] 26 Ch D 700 that: Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary."
The principles set out in the cases cited above are relevant to whether the Mr Touma was denied procedural fairness because of the refusal of the adjournment application.
We have concluded that Mr Touma was not denied procedural fairness. In relation to this ground, procedural directions had been made on three prior occasions. These procedural directions gave Mr Touma ample opportunity to provide documents to the Tribunal in respect of his defence against Mr Colantuono's application and in support of his own application. We do not accept the claim that Mr Touma did not receive the Tribunal's directions. We do not accept the submission that Mr Touma did not understand the Tribunal's directions. We have concluded that Mr Touma chose not to comply with the Tribunal's directions. Mr Touma therefore does not have an adequate explanation for his failure to comply with those directions.
In such circumstances, we are not satisfied that the Tribunal denied Mr Touma procedural fairness by refusing his application for an adjournment. The lack of an adequate explanation for Mr Touma's failure to comply with the Tribunal's directions weighed heavily against the granting of an adjournment and we are not satisfied that the Tribunal erred in refusing to grant one. Rather, we consider that the Tribunal's decision to refuse the adjournment application was consistent with the guiding principle set out in s 36(1) of the NCAT Act; that is, the resolution of the real issues in dispute in the proceedings in a manner that is just, quick and cheap.
In any event, it is clear from the reasons for decision that Mr Touma made the adjournment application because the invoices he wished to rely on were not provided to the Tribunal with his statement on the day of the hearing. The invoices are those provided on the appeal from J3 Holdings Pty Ltd t/as Stylish Living for the supply of laundry cabinetry and hinges and from Sydney Timber & Hardware for the supply of timber. These invoices are for the sum of $4,400 and $2,272 respectively; that is, a total of $6,672. The sum of $1,250 was said to be outstanding in respect of the first invoice.
Even if these invoices had been before the Tribunal, we do not consider that they would have made any difference to the outcome. In relation to this, the Tribunal found that Mr Colantuono had paid Mr Touma $19,500 for the works he had undertaken. The reasons for decision state: 26. The Tribunal is satisfied on the documents and oral evidence of the applicant that the applicant had paid the respondent $19,500 for the works, either to the respondent direct or to sub-contractors in respect of the scope of works under the contract between the applicant and respondent. 27. The respondent asserted in oral evidence that he did not believe he was paid as much as the applicant stated, but provided no tax invoices or other records to verify what had been paid.
In the affidavit evidence provided on the appeal, Mr Touma claims that Mr Colantuono had only paid $14,000, relying on text messages acknowledging receipt of payments. However, in this affidavit evidence, Mr Touma does not address the Tribunal's finding that $19,500 was paid "either to the respondent direct or to sub-contractors in respect of the scope of works under the contract between the applicant and the respondent".
The Tribunal found as follows in relation to incomplete work and Mr Touma's cross-application: 30. It is clear that works were incomplete. The pergola framework was in place (although defective) but incomplete, and the eaves were incomplete. 31. In respect of what amount was outstanding under the contract at the date that work ceased in about 31 May 2020, there is insufficient evidence to satisfy the Tribunal that the applicant owed the respondent for work that had been performed but not paid for. In other words, the respondent had been paid $19,500 on a "due and charge" basis. Although the respondent asserted that "90% of the work" had been completed, there is no expert evidence adduced by the respondent to support this and the Tribunal gives little weight to the respondent's subjective opinion as to how much work has been performed. 32. Further, on the issue of quantum meruit (in respect of the respondent's cross application) the Tribunal is not satisfied that there is evidence to establish that the applicant had performed work for which he had not been paid (and such work accepted by the applicant) the fair and reasonable amount of which exceeds the $19,500 paid by the applicant. In any event, the respondent was unlicensed, and the Tribunal is not satisfied it is fair and reasonable under s 94 of the HB Act for the respondent to be able to bring a claim in quantum meruit in any event.
As noted above, at the hearing Mr Touma did not provide any evidence to the Tribunal concerning the amount he had been paid by Mr Colantuono, other than to state that he did not think he was paid $19,500. He did not provide independent evidence of the amount of work completed or of the value of the work completed.
Even if Mr Touma had only been paid $14,000, as he claims in his affidavit evidence provided on appeal, the invoices from J3 Holdings Pty Ltd t/as Stylish Living and from Sydney Timber & Hardware do not establish that Mr Touma performed work the value of which exceeded this amount. In these circumstances, we conclude that even if the tax invoices had been before the Tribunal, it would not have made any difference to the outcome. No practical injustice arose from the fact that that the invoices had not been provided to the Tribunal.
Mr Touma has not submitted that there was a denial of procedural fairness on any basis other than the hearing was not adjourned and he lacked an opportunity to provide documents to the Tribunal. We are not satisfied that Grounds 1, 2, 3, 4 and 8 are made out. These grounds are accordingly dismissed.

Did the Tribunal err in making an order against Mr Touma rather than against ST Carpentry & Constructions Pty Ltd? (Grounds 6 and 7)

Mr Touma claims that he did not contract with Mr Colantuono. Rather, he claims that ST Carpentry & Constructions Pty Ltd was the contracting entity and undertook the work. Mr Touma also claims that he is an employee of the company. In support of this proposition, Mr Touma relies on: 1. The cancellation of the ABN for ST Carpentry & Constructions from 17 January 2020; 2. The registration of ST Carpentry & Constructions Pty Ltd from 19 January 2020; 3. The email sent by Mr Touma to Mr Colantuono on 19 January 2020 confirming the scope of work which was outline in the email Mr Colantuono sent to Mr Touma on 17 January 2020; 4. A text message Mr Touma sent to Mr Colantuono on 4 March 2021 in which he stated: Hi Anthony Sam from st Carpentry&Construction pty Ltd [sic] I have received your deposit of $5000 that's for the first payment thanks I'll see u on Tuesday for start date and Monday Timber order should be there 1. Work commenced on 10 March 2020.
Documents evidencing the cancellation of the business name and the registration of the company name were provided on the appeal, as were copies of the email referred to in (c) above and the text message referred to in (d) above. No evidence was provided in support of the claim that Mr Touma is employed by ST Carpentry & Construction Pty Ltd other than Mr Touma's assertion to this effect in the affidavit evidence filed in the appeal.
Mr Touma did not claim that the company was the contacting party in the Tribunal proceedings. The claim was raised for the first time on appeal.
Generally speaking, parties are bound by the manner in which they conduct their case at first instance. In relation to this, in University of Wollongong v. Metwally (No. 2) [1985] HCA 28; (1985) 59 ALJR 481, at p 483; [1985] 60 ALR 68, at p 71 the High Court stated: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
This passage was cited with approval in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 (19 June 1986) at [10]: see also Drivas v Burrows [2014] NSWCATAP 87 in which the Appeal Panel stated at [32]: The considerations favouring finality of litigation are at least as strong, and probably stronger, in the case of the Tribunal given the importance attached to the expeditious and inexpensive disposition of proceedings [under the] Civil and Administrative Tribunal Act (the Act).
We have considered whether there are exceptional circumstances that warrant allowing Mr Touma to raise this issue on appeal, when he did not do so before the Tribunal. We do not consider that there are such exceptional circumstances. We conclude that Mr Touma had ample opportunity to put to the Tribunal below that the company was the contracting party.
First, Mr Colantuono's application initially named ST Carpentry & Construction (that is, the business name Mr Touma had previously traded under) as the respondent. At the first directions hearing on 6 July 2020, the Tribunal amended the name of the respondent to Mr Touma's name. In the reasons published with the procedural directions made on that day, the Tribunal noted that "The parties agree they were parties to a contract …." In our view, if Mr Touma took the view that the company had contracted with Mr Colantuono, it was incumbent on him to so advise the Tribunal at that time.
Second, when Mr Touma lodged a cross-application on 28 July 2020, he named himself as the applicant. When we asked Ms Abou-Hamad at the appeal hearing why Mr Touma had done so if the company was the entity that contracted with Mr Colantuono, her response was to the effect that Mr Touma did so "because he could" and "because the Tribunal Member had told him to". Neither of those explanations is satisfactory or accepted. If the company had contracted with Mr Colantuono, there was no reason for Mr Touma to name himself as the applicant.
Further, the submission that Mr Touma did what the Tribunal Member purportedly told him to do is problematic for two reasons. It is inconsistent with the submission made during the appeal hearing that Mr Touma did not receive the Tribunal's procedural directions (a submission that we have rejected above) and it is inconsistent with the order made by the Tribunal that stated: Should the Respondent intend to bring a cross application, the Respondent shall on or before 27-Jul-2020 lodge an application with the Tribunal specifying the orders sought. (Emphasis added)
If Mr Touma did not intend to bring a cross application there was no obligation on him to lodge such an application and if he intended to bring a cross application in the name of the company, he could have done so. The fact that Mr Touma lodged a cross-application and named himself and not the company as the applicant strongly suggests that he considered himself to be the contracting party, or at least that he did not make any relevant distinction between himself and the company.
In any event, on the material before us, we are not satisfied that Mr Touma has established that the company in fact contracted with Mr Colantuono.
First, there is nothing in the material provided on the appeal to suggest that Mr Touma provided a quote in the name of the company, advised Mr Colantuono that he was contracting on behalf of the company, issued invoices in the name of the company or asked for monies to be paid into the company's bank account. Indeed, there is nothing to suggest that Mr Touma so much as advised Mr Colantuono of the company's existence before or at the time the contract was entered into, which we take to be on or about 19 January 2020, when Mr Touma confirmed the scope of work Mr Colantuon had sent to him on 17 January 2020.
In relation to post-contractual conduct, there are only two specific references to the company in the emails and text messages between the parties that have been provided on the appeal. The first is a text message Mr Touma sent to Mr Colantuono on 4 March 2020, in which Mr Touma refers to himself as "Sam from st Carpentry&Construction pty Ltd" [sic]. The second reference to the company is in a text message sent on or about 25 March. It appears that the parties may have already been in dispute at the time. In the text message, Mr Touma relevantly states that he has been in the trade "for five years as a carpenter", that his business has been open "for 2 years now and not got any complaints" because he "works to the Australian Standard". He states that his "company name is ST Carpentry & Construction PTY LTD" so he "won't go and put [himself] in risk by putting the wrong timber on to save 400 or 500$".
Post-contractual conduct may be used for the purpose of identifying the parties to an unwritten contract: Damien v JKAM Investments Pty Ltd [2015] NSWCA 368, per Tobias AJA at [28]. In this case, the contract is partly in writing in that there is a scope of work proposed by Mr Colantuono and agreed to by Mr Touma in the form of emails. However, as the written material at the time the contract was entered into does not identify the parties, we conclude that the contract is not wholly in writing and regard may be had to post-contractual conduct. We have therefore considered whether the 4 March and 25 March 2020 text messages suggest that the company and not Mr Touma contracted with Mr Colantuono.
We are not satisfied that this is the case. Contrary to the written submission made by Ms Abou-Hamad that in this text message "ST Carpentry & Construction Pty Ltd confirmed the receipt of the sum of $5,000 being a deposit for part payment of work", the message states: "I have received your deposit …". This suggests that it was Mr Touma and not the company that was paid. It does not lead us to conclude that the company was the contracting party. In relation to the 25 March 2020 text message, it mentions the company's name in the context of Mr Touma suggesting that he wouldn't put himself at risk in order to save money on a job. However, without more, we do not conclude on the basis of the email that the company was the contracting party.
Mr Touma also relies on the cancellation of his business name and the registration of the company, which occurred on 17 January 2020. Without more, this does not cause us to conclude that the contract was between Mr Colantuono and the company. Mr Touma was a licensed carpenter who could contract as an individual. The mere fact that Mr Touma cancelled a registered business name and then registered a company does of itself not mean that the company is or becomes the contracting party.
We note that it is not in dispute that Mr Touma and not the company holds a carpenter's license. Section 4(1) of the HB Act provides: 4 Unlicensed contracting (1) A person must not contract to do - (a) any residential building work, or (b) any specialist work, except as or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work. Maximum penalty - 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.
Ms Abou-Hamad submitted that Mr Touma could contract on behalf of the company because he holds a license, even though the company is unlicensed. We do not accept this submission. The effect of s 4(1) is that Mr Touma could only contract on behalf of the company if the company was "the holder of a contractor licence authorising its holder to do that work". As the company did not hold a license to do residential building work, Mr Touma could not, without contravening s 4 (1), contract to do residential building work on behalf of the company. The submissions made on Mr Touma's behalf do not satisfactorily explain why Mr Touma would have the company enter into a contract when it was not licensed to do any of the work that was the subject of that contract.
While Mr Touma may have thought that he had entered into a contract on behalf of the company - even though he did not put that case to the Tribunal below - the legal obligations of parties to a contract "do not depend upon their subjective beliefs but upon the view of the reasonable bystander informed as to the surrounding context and circumstances": Johnston v Brightstars Holding Company Pty Ltd [2014] NSWCA 150 at [120]-[121]. We are not satisfied in this case that such a bystander would conclude that the contract was with the company rather than with Mr Touma.
Overall, we conclude that the Tribunal did not err in making an order against Mr Touma. Grounds 6 and 7 are dismissed.

Did the Tribunal err in failing to take into consideration "the severe loss caused to the appellant's business due to the respondent's unjust behaviour". (Ground 5)

As noted above, at the appeal hearing Ms Abou-Hamad could not articulate the question of law that arises in respect of this ground of appeal. None is apparent to us on the material provided. Ground 5 is dismissed.

Is there a basis on which Mr Touma should be granted leave to appeal?

On the material provided, we are not satisfied that Mr Touma may have suffered a substantial miscarriage of justice on one or more of the bases set out in cl 12(1) of Schedule 4.
We have already found that Mr Touma was not denied procedural fairness by being refused an adjournment. Furthermore we are satisfied that he had ample opportunity to provide documents to defend the application against him and to support his application. Mr Touma has not established that the decision was not fair and equitable.
We are not satisfied that the decision was against the weight of evidence. Mr Touma did not comply with the Tribunal's directions in relation to the filing and service of documents, but there is nothing in the material before us to suggest that Mr Touma's oral evidence and submissions were not taken into account. We are satisfied that the decision made by the Tribunal was both open to it and in accordance with the evidence before it.
We are not satisfied that significant new evidence is now available that was not reasonably available at the time of the hearing. The documents filed with the appeal (that is, the affidavits and annexures thereto, including emails, text messages, invoices and ASIC documents) were all documents Mr Touma could have provided in accordance with the Tribunal's directions, but failed to do so. They do not constitute "new evidence" within the meaning of cl 12(1) of Schedule 4.
Even if we had found one or more of the requirements for leave to appeal established, we would not grant leave to appeal. We are not satisfied that this is a matter in which the discretion to grant leave to appeal should be granted taking into account the criteria set out in Collins v Urban at [23] and extracted above.

Orders 1. Time to lodge the appeal is extended, to the extent necessary, to 23 February 2021. 2. Leave to appeal is refused. 3. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 May 2021

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