Vision Homes Pty Ltd v Ronald and Carol Bailey

1. This challenge asserts error on a question of law. The Appellant may agitate this ground as of right, and does not require leave to appeal (s 80(2)(b) Civil and Administrative Tribunal Act 2013 (CAT Act)).
2. This issue can be swiftly disposed of. In its decision of 27 August 2025, the Tribunal at first instance explained [3]-[6] why the Appellant's application to adjourn the hearing was refused. The Tribunal's reasons [3]-[6] explained why the it was, and did so adequately (Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 133). No finding of fact relied upon by the Tribunal in exercising its discretion to refuse the adjournment has been shown to have been erroneous.
3. The Appellant's complaint in relation to the adjournment application was, in substance, that the decision was "unjust, unreasonable, and contrary to the principles of fairness". The Appellant submitted that its Director was "dealing with urgent and exceptional personal and family matters that significantly impacted his ability to comply with the Tribunal's deadlines". The Tribunal was submitted to have chosen to "ignore these extraordinary circumstances, and refuse the adjournment, thereby denying (the Appellant) a fair opportunity to present all necessary evidence". The Appellant has not directed the Appeal Panel to evidence before the Tribunal at first instance which established a compelling basis for granting an adjournment (House v R (1936) 55 CLR 499; [1936] HCA 40).
4. At the directions hearing, the Appellant informed Principal Member Blake AM SC that it had lodged with the Registry, and given to the Respondents all documents on which it is intended to rely in support of the appeal. The Appellant did not provide a transcript of the hearing. The Appeal Panel does not know what the Appellant advanced in support of the adjournment application by way of submissions, or evidence in support of them, or what exchanges took place between the Appellant and the Tribunal. In the absence of the transcript, and evidence which was before the Tribunal at first instance in support of the adjournment application, the Appeal Panel cannot be satisfied that this challenge is made out, either, on a question of law, or, pursuant to leave, on any other ground. It remain to consider the Appellant's other challenges, which do require a grant of leave to appeal.

1. The principles governing the application for leave to appeal pursuant to s 80(2)(b) of the CAT Act are not in doubt, and require only brief reiteration. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel comprehensively explained the principles governing an application for leave to appeal from a decision of the Consumer and Commercial Division of the Tribunal. The decision under challenge is such a decision. The Appeal Panel recorded [66] that, pursuant to clause 12(1) of Schedule 4 of the CAT Act the Appeal Panel's discretion to grant leave to appeal is only enlivened if the Appeal Panel is satisfied that:

"The appellant may have suffered a substantial miscarriage of justice because:

(a) the decision of the Tribunal under appeal was not fair and equitable, or

(b) the decision of the Tribunal under appeal was against the weight of evidence, or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)."

1. Although, in its written submissions, the Appellant disputed that the decision of the Tribunal at first instance was fair and equitable, and against the weight of evidence, the Appellant's main basis for seeking leave to appeal is principally reliant upon evidence which was filed within a month of the decision of the Tribunal under appeal.
2. The Appeal Panel recorded [68] that an applicant was not required to satisfy the Appeal Panel that a substantial miscarriage of justice has actually been suffered, all that is required being that the applicant "may" have suffered such a miscarriage. The Appeal Panel said at [71], that the "concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred". In the absence of the transcript of the first instance hearing, the Appellant's challenges to "the way (the) matter was conducted" are problematic.
3. By reference to the decision of the High Court in Gallagher v R (1986) 160 CLR 392; [1986] HCA 26 where it was said, at [402] that "The appellate court will conclude that the unavailability of the new evidence at the time of the trial involved such a miscarriage if, and only if, it considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial".
4. For present purposes, the test can be considered to involve a significant possibility that the Tribunal at first instance would have come to a different decision if the new evidence had been before it. That is consistent with the observations of the Appeal Panel at [74] with respect to a "significant possibility" that a "different, more favourable result would have been achieved if the evidence had been before the Tribunal".
5. The Appeal Panel recorded that the authorities establish [2] that the decision under appeal can be said to be "against the weight of evidence ... 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".
6. The Appeal Panel observed [79] that in demonstrating that a party has been denied of a "significant possibility" of achieving a different and more favourable result, it will "generally be necessary for the party to explain what its case would have been and show that it was fairly arguable".
7. Under the heading "Leave to appeal - general principles on the grant of leave" the Tribunal reiterated at [8] that the grant of leave under s 80(2)(b) of the CAT Act was discretionary, as the word "may" suggested. After reviewing relevant authorities, the Appeal Panel recorded [84] the "general principles" which emerged from them as establishing, relevantly for present purposes:

"(1) The applicant must demonstrate "something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact";

(2) ordinarily it is appropriate to grant leave to appeal only in matters that, relevantly for present purposes, involve:

...

(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 Reasons for the Decision of the Tribunal at first instance

1. The reasons of the Tribunal at first instance are, sensibly, not suggested to have been legally inadequate. After recording its reasons [7]-[8] for rejecting the Appellant's adjournment application, the Tribunal recorded the history of the parties' former relationship as builder (Appellant) and home owners (Respondents).
2. Under the heading the "Applicants' Case" as the present Respondents then were, the Tribunal referred [8] to the reports relied upon by them in support of the defects which they alleged, and the cost of their rectification. In view of the degree of apparent similarity between the reports relied upon by the Respondents before the Tribunal at first instance and the reports sought to be relied upon by the Appellant in the appeal, there does not seem to be a dispute that remedial work was needed, the issue being the extent, and thus the cost of it.
3. The Tribunal recorded [9] the substance of the Respondents' roofing inspectors' assertions, and the photographic support for some of those assertions. Relevantly in relation to the third issue raised by the Appellant, the Tribunal recorded [11] the basis on which the Respondents opposed a work order, and sought a compensation order so that they could arrange for the repair and rectification work to be undertaken. The Tribunal referred [12] to the quotes provided by the Respondents for roofing repair works and internal repainting required to repair water ingress marks to the ceilings in two rooms and to three of those quotes being tendered at the hearing without objection by the Appellant. The Appellant did not dispute that the reports were tendered without objection, although, as the Tribunal recorded, the Appellant was critical of them in a number of respects. The Appellant did not seek to challenge the Respondents' experts through cross-examination, or adduce evidence disputing the Respondents' experts' quotes.
4. Under the heading "Respondent's case", the Tribunal identified the basis of the Appellant's case [13]-[16]. It is not suggested that the Tribunal failed to identify any issue raised by the Appellant.
5. The Tribunal then considered the legal provisions which governed the proceedings [17]-[20]. It is not suggested that the Tribunal misstated or misconceived the relevant legal provisions, the Appellant's challenge being to the Tribunal's findings with respect to the issues in dispute.
6. The Tribunal recorded [21] that it was "persuaded by the evidence of the Applicants that the circumstances of this case warrant an order for compensation in lieu of the Respondent or its subcontractors returning to carry out rectification works" and explained why that was so.
7. The Tribunal found [22] that the Respondents had "supported their claim for roof repairs by reference to several quotes". The Tribunal recorded that the Appellant "contends that not all the work to the roof is or might be required", but "has failed to present any evidence in support of this position".
8. It is not in contest that the Tribunal accurately recorded the Appellant's contention. It is not in contest that, at the first instance hearing, the Appellant failed to produce any evidence in support of its contention. For the reasons which it recorded [23], the Appellant accepted the quote relied upon by the Respondents for painting work needed to remediate internal water ingress staining at the Respondents' premises. It is not in contest that the Appellant adduced no evidence from anyone qualified to give it with respect to painting during the hearing at first instance.

The new evidence sought to be relied upon by the Appellant

1. In CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 the High Court held, at [109] that an appeal court could receive new or further evidence if it demonstrated that the decision under appeal was erroneous. Although relevant to the exercise of discretion, unlike in the present proceedings, it was not necessary for an appellant to demonstrate that the new or further evidence was not reasonably available when the proceedings at first instance were heard.
2. The Appellant asserted, but, with respect, has not adduced evidence establishing why it was unable to have obtained and relied upon the three quotes which were obtained, two on 17 and one on 18 September 2025 prior to the hearing at first instance.
3. The Appeal Panel does not dispute that being engaged in Family Court proceedings would have been stressful for the Appellant's Director, and accepts that he may have felt constrained in what he could reveal about those proceedings in the Tribunal. Beyond that assertion however, there is no evidence which establishes that the director was not reasonably able to secure the three quotes which the Appellant seeks to rely upon on or before 27 August 2025 by reason of Family Court proceedings.
4. The Respondents submitted, and the Appellant did not dispute, that the entities providing the quotes obtained by the Appellant had access to their premises prior to providing them. The nature of the quotes and the extent of the work quoted on was not suggested to require the attendance of the Appellant or, realistically, to do more than make arrangements for them to be obtained. There is no evidence that the quotes could not have been obtained prior to the hearing. The Appellant's director candidly concedes that he was preoccupied with his other, and no doubt more pressing proceedings. The Appeal Panel does not criticise the director for that, but the Respondents cannot be disadvantaged by his decision.
5. It is relevant in this regard to note the history of the proceedings prior to the hearing on 27 August 2025. In refusing the Appellant's application for an adjournment, the Tribunal set out the procedural history of the case (at [5]). With respect to the Appellant, given that, as the reasons for the decision of 27 August 2025 confirm, that it disputed the scope and quantum of the Respondents' claim, and having regard to what obtaining the quotes entailed, the Appeal Panel cannot accept that the Appellant did not have a reasonable opportunity to obtain quotes for the remedial work prior to the hearing at first instance.
6. If, contrary to the Appeal Panel's finding, the Appellant satisfied the first requirement for leave to rely on new or further evidence, the second requirement for leave would not be satisfied. If received, the evidence of each of the entities providing quotes for remedial and repair work relied on by the Appellant might be preferred to those upon which the Respondents relied. The contents of the documents themselves do not suggest that to be more than a possibility, and certainly not a "significant possibility".
7. In all the circumstances, the Appeal Panel is not persuaded that the Appellant should be granted leave to reply upon "new evidence". In the absence of the new evidence, no basis for granting leave to appeal otherwise emerges. It has not been demonstrated that the Appellant was denied procedural fairness. On the evidence before the Tribunal, it cannot be established that the decision was not fair and equitable or against the weight of evidence.
8. The Appellant has not directed the Appeal Panel to any evidence which was before the Tribunal at first instance which advances either of the grounds on which it otherwise sought leave to appeal.

Whether a work order should have been made instead of a compensation order

1. Although, sensibly, the Appellant appeared to confirm during the hearing of the appeal that this challenge was ultimately not of vital importance to it, the Appeal Panel must consider the Appellant's challenge.
2. The Appeal Panel has referred earlier to the Tribunal's reasons (at [20]-[21]) for its decision. Though brief, the reasons adequately reveal why the compensation order was made. It has not been demonstrated on any recognised basis that, by making a compensation order, rather than a work order, the discretion of the Tribunal miscarried. It has not been shown that the Tribunal misconceived or misapplied the law, failed to have regard to a relevant matter, had regard to irrelevant matters, relied on material errors of fact, or made a decision which no reasonable decision maker could have made. It has not been shown that the decision was vitiated on any of the grounds explained by the Appeal Panel in Collins. The Tribunal could permissibly have come to a different decision, but that is not the test.
3. The Appellant submitted that the Respondents' claims of a "pattern of non-cooperation" were "exaggerated, incomplete and unsupported by factual evidence", asserting that it had "acted in good faith at all stages". The Appellant has not directed the Appeal Panel to any evidence before the Tribunal at first instance demonstrating that any of those findings was erroneous.

1. No basis for a grant of leave to appeal having been demonstrated, the application for leave to appeal will be refused and the Notice of Appeal dismissed.

(1) The application to adduce new evidence is refused.

(3) The Notice of Appeal filed on 24 September 2025 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.