Vidler v Lee t/as Northern Rivers Landscaping

NCAT Appeal Panel|2022-11-28

Introduction

By a Notice of Appeal lodged on 27 September 2022, Ms Vidler (the 'appellant') challenged orders made in the Commercial and Consumer Division of the Tribunal ('Tribunal') on 26 August 2022 dismissing her Home Building Application ('Application') brought against Mr Lee, trading as Northern Rivers Landscaping (the 'respondent').
The appellant is the registered proprietor of a property in northern New South Wales (the 'property'). In about November 2022, the appellant engaged the respondent to construct a retaining wall on the property in advance of another contractor undertaking the construction of the residential premises.
The appellant claimed an amount of $41,627 that comprised a refund of amounts paid to the respondent and other costs incurred due to the respondent's allegedly defective construction of the retaining wall. The respondent's work is prescribed "building work", being "structural landscaping" under s 13(a)(iv) of the Home Building Regulation 2014 (NSW). Therefore, the respondent was required to hold a contractor licence in respect of such work in accordance with ss 4 and 21(1)(a) of the Home Building Act 1989 (NSW) ('HBA').
These are our reasons for allowing the appellant leave to appeal from the Tribunal's findings and in upholding the appeal.

Grounds of Appeal and Appellant's Contentions

The appellant filed her Notice of Appeal on 27 September 2022. The appellant accepted that leave to appeal was necessary and contended that the Tribunal's decision was not fair and equitable because: 1. The Tribunal did not consider the fact that the respondent carried out the work as an unlicensed trade contractor in respect of landscaping works of a value over $5000; 2. The respondent's work was not done with the diligence or to an acceptable or professional standard for which he had been fully paid by the appellant; 3. The appellant remains without compensation for the defective and failing retaining walls.
The appellant contended that the Tribunal should have given more weight to the following evidence: 1. That neither the first nor the second retaining wall was built to the correct plans and approved engineering requirements that had been provided to the respondent in November 2021; 2. The retaining walls have slumped and "clearly bowed, moved from their footings, [were] built too close to the house and [are] totally out of alignment"; 3. The respondent was unlicensed.
The appellant also sought to rely at the appeal upon the following new evidence: 1. an expert report by a registered building certifier, Mr Craig Nowlan, dated 4 November 2022; and 2. an unsigned and undated statement (with attachments) that was prepared after the hearing before the Tribunal, by a director of the licensed builder of the residential premises, Mr Glen Stewart of Adenbrook.
The appellant contended that the Appeal Panel should give "weight" to that new evidence.
Before the Tribunal and on this appeal, the appellant claimed damages of $41,627 against the respondent for alleged breaches of the statutory warranties in s 18B of the HBA.

Reply to Appeal and Respondents' Contentions

The respondent lodged a Reply to Appeal on 11 October 2022. The Reply to Appeal sought orders upholding the Tribunal's decision.
The respondent contended before the Tribunal and on this appeal that: 1. In April 2022 after the retaining walls were constructed, he noticed damage to the walls; 2. He formed the view that the subsoil had been removed from the area, causing the walls to fail; 3. In addition, subsequent plumbing works by others had undermined the integrity of the footings and that the footings had been knocked, possibly by machinery, because the concrete had been removed from the footing which would have required "considerable force"; 4. He offered to assist the appellant "as best I could, given the circumstances".

Statutory Grounds for Appeal

Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act') provides that an internal appeal (which this is) may be made as of right to the Appeal Panel on a question of law and otherwise with the leave (that is, with the permission) of the Appeal Panel.
An internal appeal is not a re-hearing of the original proceedings or a mere opportunity for a party dissatisfied with the outcome in the original proceedings to re-argue its case. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 (BKB Motor Vehicles), the Appeal Panel said at [10]: An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) at [13], the Appeal Panel set out a non-exclusive list of questions of law including whether there has been a failure to provide proper reasons, whether there was a failure to afford procedural fairness, and whether the Tribunal failed to consider relevant (ie, mandatory) considerations.
Where, as in this case, an appellant is self-represented and not legally trained, it is appropriate for the Appeal Panel to review the grounds of appeal, the material provided by the parties and the Tribunal's decision which is being challenged, to ascertain whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: Prendergast at [12]; Cominos v Di Rico [2016] NSWCATAP 5 (Cominos) at [13].
In the absence of any question of law raised by an appeal, 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 Sch 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), the Appeal Panel stated at [76] that a "substantial miscarriage of justice" for the purposes of Cl. 12(1) of Sch. 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 requiring leave to appeal has satisfied the requirements of Cl. 12(1) of Sch. 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
In Collins, 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; (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.
The appellant must demonstrate something more than the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]).

Leave to Appeal

We have had regard to the matters relied upon by the parties, including the written submissions and evidence lodged by the appellant on 11 November 2022 and by the respondent on 24 November 2022. We have also considered the parties' oral submissions at the hearing of the appeal and the findings made by the Tribunal. We are satisfied that the appeal does not raise a question of law and that leave to appeal is required.
Having regard to the above principles, we are of the view that the Appellant may have suffered a substantial miscarriage of justice within the meaning of cl 12(1) of Sch 4 and that, having regard to the reasons of the Appeal Panel in Collins at [84(2)] referred to above, this appeal requires our consideration of whether the Tribunal went about the fact-finding process in such a way that it was likely to have produced an unfair result.

New Evidence

Before dealing with the substantive aspects of the appeal, it is necessary to consider the appellant's application to rely upon new evidence at the hearing of the appeal.
As stated above, appellant sought to rely upon an expert report by Mr Nowlan, dated 4 November 2022 that was prepared following his inspection of the works on that same date.
This report was presumably intended to address the Tribunal's findings under the heading "Independent Expert Opinion" at [7] that the appellant had failed to adduce "any relevant independent expert opinion and evidence to contradict the claim by the respondent contractor that the integrity of the retaining wall has failed as a result of the excavation and plumbing works that were undertaken after its completion …"
Clearly, it was open to the appellant to adduce that expert evidence before the hearing and she chose not to do so. Instead, the appellant relied upon an "unsigned 'statement of landscaper 'Joe Washington'" which the Tribunal rejected as being an "expert opinion" as it was: … unsigned, does not contain information of the qualifications or experience of the author, does not refer to the expert code of conduct and does not give an estimate of the cost of repair. (at [1]).
The Tribunal further stated at [2]: The Tribunal notes the absence of those matters in the statement of the landscaper and as provided in the in NCAT procedural direction 3, the Tribunal is unable to give weight to the assessment provided that the 'walls are unacceptable and have to be removed and new ones built'.
Presumably too, the application to rely upon the unsigned and undated statement (with attachments) made by Mr Stewart of Adenbrook, that was prepared after the hearing before the Tribunal, was intended to deal with the Tribunal's following comment at [4]: The Tribunal notes the absence of particularly relevant evidence is [sic] any statement or opinion by the builder or relevant site manager of the home building construction.
We are not satisfied that the Nowlan report or the Stewart statement constitutes "significant new evidence" within the meaning of cl. 12(1)(c) of Sch 4 of the NCAT Act, which requires such evidence to be "new" in the sense that it "was not reasonably available at the time the proceedings under appeal were being dealt with". This is to be made by an objective assessment: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23].
This evidence was clearly available to the appellant had she sought to obtain it and rely on it at the proceedings before the Tribunal. It is therefore not "new" evidence within the meaning on cl 12(1)(c) of Sch 4 of the NCAT Act.
We reject the appellant's application to rely upon the new evidence in the form of the expert report of Mr Nowlan and the (unsigned) statement of Mr Stewart of Adenbrook.

Tribunal's fact-finding process

We accept that it was open to the Tribunal to not afford any weight to the unsigned statement of Mr Washington that was relied upon by the appellant. We have set out above the grounds given by the Tribunal at [1] and [2] of its Reasons.
However, the appellant explained in oral submissions before us on the appeal that the content of Mr Worthington's "independent report" (which she did not provide at the hearing for reasons explained to us) was actually set out in a letter from her to the respondent dated 9 May 2022 that stated: I have had an independent report done for the above property …
The letter listed 18 "findings" identifying allegedly defective and inadequate work in relation to the retaining walls together with some photographs. In our opinion, the Tribunal as a matter of fairness, should have had regard and afforded some weight to that letter dated 9 May 2022 on the basis that it incorporated Mr Worthington's comments even if it decided to give no weight to his unsigned statement.
That is a significant matter because although Mr McQueen purported to have regard to several (unidentified) documents including "letters", Mr McQueen does not identify that very important letter or deal in any way with its assertions and conclusions. In our opinion, before accepting Mr McQueen's evidence, the Tribunal should at least have been satisfied that Mr McQueen, in so far as he said he "studied the letters" passing between the parties, had considered the maters raised in the letter of 9 May 2022 from the appellant to the respondent. Mr McQueen gives no indication that he saw that letter or considered its contents, yet these go the very basis of the appellant's claims.
In our view, the Tribunal should not have accepted Mr McQueen's evidence without qualification unless it was first satisfied that Mr McQueen had expressly acknowledged being aware of and had dealt with the matters set out by the appellant in her letter of 9 May 2022. He did not respond in any way to the opinions set out in that letter.
Also, in a comparative sense, the Tribunal gave disproportionate weight to the opinion of Mr Gordon McQueen. He was described simply as a "construction contractor": at [3]. Also, Mr McQueen's statement contained many of the shortcomings of which the Tribunal was critical and that caused it to give no weight to Mr Worthington's statement.
Having regard to the Tribunal's reasons for not giving any weight to the statement of Mr Worthington, we are of the view that the Tribunal failed to apply the same or equally relevant and rigorous considerations by allowing and accepting as determinative, all of the evidence of Mr McQueen on behalf of the respondent.
In particular, the Tribunal did not have regard to the following matters, which in our view, should have been considered by the Tribunal, when evaluating and before accepting, the totality of Mr McQueen's evidence without qualification: 1. The Tribunal accepted the evidence of Mr McQueen that the retaining walls were built to the "correct standard", using "correct procedures" and products "as requested" by the homeowner. There is no reference to the evidence by which that opinion is provided. There is no reference or identification of the correct standards. There is no reference or identification of the correct procedures or products or what was, if anything, said to have been requested by the homeowner; 2. Mr McQueen also relied upon the same conjecture offered by the respondent that the walls were "possibly hit by the excavator" during the building work undertaken by Adenbrook. The Tribunal accepted that evidence without qualification; 3. The Tribunal also unequivocally accepted the evidence of Mr McQueen that the structural integrity of the two walls had been compromised by the removal of the subsoil during the installation of plumbing and other earthworks. That was a matter on which Mr McQueen could only possibly speculate. Yet he appears to have unquestionably accepted the unverified evidence or assertions to that effect provided to him in person by the respondent; 4. The "report" was provided in a letter format, but without a formal letter head, and it was not addressed to the Tribunal but "to whom it may concern; 5. Mr McQueen did not state that he is aware that his comments were being provided for the purpose of proceedings brought by the appellant against the respondent in this Tribunal; 6. There is no reference to or acknowledgement of the NCAT Expert Code of Conduct/NCAT Procedural Direction 3 (PD 3); 7. The comments and opinions of Mr McQueen were derived only from a desk-top review of unidentified "letters, emails, plans and photos supplied by Jackson Lee …"; 8. Mr McQueen stated that he discussed the matter with "Jackson" but he does not say what he was informed or instructed by Mr Lee or what assumptions he made for the purpose of providing his opinion; 9. Other than a building licence and a supervisor's licence number being identified in the letter, there is no evidence of Mr McQueen's specialised knowledge, any area of specialised study or training, details of his experience or his independence from the respondent: see Makita (Australia) Ltd v Sprowles (2001) NSWCA 305; 52 NSWLR 705 (Makita) at [85]; 10. There is no demonstrated process of reasoning to explain and justify Mr McQueen's opinions, in particular his conclusion that the retaining walls were built to the correct standard using correct procedures: Dasreef v Hawchar [2011] HCA 21; 243 CLR 588 (Dasreef) at [42] [91]; [133].
Although this Tribunal is not governed by the rules of evidence (s 38(1) NCAT Act) and Makita and Dasreef dealt with the question of the admissibility of expert evidence in the context of s 79(1) of the Evidence Act 1995 (NSW), the rules and principles of law in relation to expert evidence discussed in such authorities, provide guidance to the Tribunal and are reflected in PD 3. PD 3 applies in matters brought under the HBA in the Tribunal's Consumer and Commercial Division where the amount in dispute (as in this case) is more than $30,000.
Non-compliance with PD 3 does not render the expert report or expert evidence inadmissible but it may "adversely affect the weight to be attributed to that report or evidence": PD 3 at [7].
Mr McQueen does not proffer his own independent expert opinions. Mr McQueen effectively adopted Mr Lee's views that the retaining walls were placed "where the owner wanted them", that the subsoil was removed during the installation of the plumbing "as shown in the photos" (but which he does not identify) and by repeating the conjecture made by Mr Lee that the walls were "possibly hit by the excavator during the works by the causing the movement of the walls".
We are satisfied that the decision of the Tribunal under appeal was not fair and equitable. The Tribunal failed to have regard to or deal with the evidence of the appellant's expert set out in the appellant's letter to the respondent dated 9 May 2022. The Tribunal did not balance the evidence and opinions of Mr Worthington in that letter with the evidence of Mr McQueen, who did not refer to that evidence. Instead, the Tribunal gave no regard to that evidence given by the appellant and gave no weight to the other evidence of Mr Worthington for reasons that applied with equal force to the evidence of Mr McQueen.
We are of the view that "there was a significant possibility", or "a chance that was fairly open" (per Collins above), that a different and more favourable result would have been achieved for the appellant had the Tribunal applied the same standards and considerations when evaluating the weight to be given to Mr McQueen's evidence as it did when deciding on the consequences of Mr Worthington's non-compliance with PD 3 (among other matters). In the context of Mr McQueen's failure to comply with the fundamental requirements of PD 3, especially those set out at [19] in relation to the content of expert reports, the approach taken by the Tribunal was inconsistent, unexplained and productive of unfairness. In those circumstances, it was not reasonably open to the Tribunal to have accepted Mr McQueen's evidence as determinative of the issues in dispute in favour of the respondent.

Conclusion

We are of the view that it would be unjust to allow the Tribunal's findings to stand where the Tribunal went about the fact-finding process in such a way that it was likely to have produced an unfair result.
We are satisfied that it would be in the interests of justice to remit the matter for a new hearing before a differently constituted Tribunal.

Orders

We make the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Remit the whole of the proceedings to the Consumer and Commercial Division of the Tribunal for a new hearing by a differently constituted Tribunal upon the evidence already adduced and any further evidence as the Tribunal may allow.

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: 24 February 2023

(NSW), Home Building Act 1989(NSW)

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