Weston v Integra Windows and Doors Pty Ltd

The reasons for decision

1. Home Building Application HB 21/12430 was listed for directions on 1 October 2021 and the Tribunal made an order for the exchange of evidence (the October orders). The Tribunal listed the matter for hearing.
2. On 1 December 2021 the Tribunal dismissed the appellant's application. The critical reasons are contained at page two of the decision "in my view the central issue to decide whose responsibility was the installation of the flashing.… As to item 1, while Mr Di Bella gave evidence that he told the respondent's employees to install the flashing, he then in the next sentence says that the reason his company did not install that flashing was because it was a main thoroughfare for all the tradespeople, and he did not want it to get damaged…. I find his evidence to be equivocal at best and it does not persuade me that even for item 1, the responsibility to install the flashing was the respondent's. I find [therefore] the responsibility to install the flashing was not the responsibility of the respondent."
3. The main dispute at the primary hearing was over responsibility for the defects. The supplier's expert, Mr Brincat of Auspro, said that the issue with the rear door/window was that the builder was responsible for installing the flashing and had not done so. The installed unit was otherwise properly sealed. Mr Brincat stated that the sunroom louver windows were not suitable for the higher wind and terrain classification of the house but had been installed correctly and were otherwise fit for purpose. The architraves were not delaminating; rather, the sealant at two locations had come free which was a "minor aesthetic" issue.
4. The owner was initially recorded in the primary decision as relying upon a report from an inspector Mr G Atwood with the Australian Glass and Window Association (AGWA), a statement by a representative of a window supplier, Mr Fleck of Stegbar PL, two statements by her builder and documentary material. As it transpired the AGWA report was not tendered by the applicant but the respondent. The owner submits this gives rise to a further error by the Tribunal.
5. The Tribunal pointed to the conclusion in the AGWA report that the builder had left in place "unsuitable old brickwork and deteriorated flashings" when removing the existing hinged rear door/window and re-bricking the adjacent walls in preparation for the installation of the new sliding rear door/window. The builder's work including on sills, membranes and flashings was said not to be in accord with AS 4654.2-2012 para 2.8.3 and was in the expert's opinion the reason that water ingress was occurring.
6. The Stegbar representative said that it was the practice of that company to provide flashings for its installers consistent with its practice that window and door flashing was installed by them.
7. The Tribunal said this was evidence of Stegbar's practice rather than opinion more generally on who was responsible for installing window flashing. The Tribunal had earlier observed that each of the builder and the supplier's expert had said that installation of flashing was usually the responsibility of a builder.
8. The Tribunal then pointed to what it said "appears to be common ground" that the builder installed all of the flashing except for the rear ground floor sliding door/window set where no flashing was installed. The Tribunal found that the builder's evidence was "equivocal at best" and that the evidence did not establish that the respondent was responsible for installing the flashing even for the door/window set. This was a reference to the evidence of the builder's principal that he installed some flashing to advance the works to avoid further delay caused by the respondent's delay to supply the windows.
9. The Tribunal concluded that the responsibility to install the flashing was not the responsibility of the respondent and dismissed the application.

Costs of the hearing

1. Provision was made for the supplier to seek costs, to be determined on the papers unless a costs hearing was applied for and ordered.
2. The respondent's cost application was considered by the Member on the papers without appearance by the parties. On 21 December 2021 the Tribunal published its costs decision ordering the owner to pay the supplier's costs in the lump sum amount of $4,523.75 on or before 18 January 2022. In its reasons the Tribunal said that submissions were received from the supplier on 8 December 2021 but not from the owner. The lump sum represented the fees charged by the supplier's expert. A claim for the director's time of $12,000 was rejected.

The notice of appeal

1. The appellant filed a notice of appeal on 4 January 2022. The appellant required an extension of time that is dealt with elsewhere in these reasons. In her notice of appeal the appellant stated as follows: 1. "Member incorrectly took a report which was commissioned by the respondent to be one commissioned by the applicant and based part of the judgement on this basis. 2. Member based the entire application of damages to relate to one aspect of the complaint only, notably the absence of flashing and who was responsible for this. Two other areas of damage which are unrelated to flashing issues and have remediation costs were ignored. 3. Costs were based on the non-response of the applicant. Respondent did not comply with 1 December order as they did not provide their application for costs to the applicant. Applicant had no opportunity to respond."
2. In her written submissions filed 23 February 2022 the appellant expanded her grounds of appeal as follows: "The Tribunal has erred in finding that the central issue is the responsibility of installing flashing. In the 1 December order the member states 'in my view the central issue to decide whose responsibility was the installation of the flashing.' However on page 4 of the order notes three areas of rectification identified at items 1, 2 and 3. Items 2 and 3 are unrelated to the installation of flashing and therefore the central issue cannot be limited to the responsibility for the installation of the flashing. There's been a lack of procedural fairness in the failure of the Tribunal to require the respondent to comply with the orders of 1 October 2021. The NCAT order of 1 October 2021 required that the respondent to send to the applicant and the Tribunal a copy of all documents… In hard copy… With pages numbered and an index. No documents were provided to the applicant on or before 1 November."
3. The appellant was present at the specified hearing time for the telephone appeal hearing. The respondent was not. At about 2.25pm there had been no communication from the respondent who had also filed no documents on the appeal. We determined to proceed and explained the appeal procedure and that the appellant still needed to establish her grounds in order to succeed on the appeal even though we were proceeding on an ex parte basis.
4. While the question of extension of time discussed below was under consideration, we were notified that the respondent had dialled into the appeal registry. We were informed that the registry that morning had, on an earlier telephone call from the respondent, informed the respondent that its representative needed to dial into the appeal hearing using the information on the notice of hearing and this was repeated. Despite this renewed invitation to participate we received no dial-in from the respondent and proceeded with the appeal hearing in the respondent's absence.

Leave to adduce new evidence

1. The appellant sought leave to adduce further evidence on the appeal from the builder. That evidence, in the form of a written statement by the principal of the builder, Mr Di Bella, was to the effect that at the primary hearing the minimally invasive investigation by all experts that had occurred meant that all parties proceeded on the basis that there was no flashing under the rear door/window. The further investigation that had since been conducted found that there was flashing installed but that it had not been properly turned up after the door/window set had been installed. The inference available, subject to contest, was 1. that the respondent had installed the flashing; 2. and that the flashing had been installed defectively.

Grounds of appeal and extension of time

1. The owner's appeal against the costs decision was filed within time on 4 January 2022.
2. The owner's appeal against the substantive decision was dated as filed 31 January 2022. The owner explained at the appeal hearing that she had originally decided not to appeal the decision but then received the adverse costs order. She then filed the appeal against that order and, as she thought, reserved her position to challenge the substantive decision by seeking an extension of time. She actually filed a notice of appeal on 28 December 2021 which put it within time for challenging the substantive decision but did not spell out the grounds of challenge to the substantive decision (which were in the notice filed 31 January 2022). At time of filing the registry was closed for the Christmas vacation hence the 4 January 2022 stamp when the registry re-opened.
3. Although the Tribunal has no rule similar to the Court rules that extend time during a court vacation, the registry appeared to have treated the notice as filed within time since a call-over date was nominated for obtaining a final appeal hearing date. The owner paid the filing fee on 10 January 2022.
4. In the above circumstances and given the small amount of delay, there appeared to be no relevant prejudice and none had been expressed in any material filed by the supplier. We accordingly granted the extension of time for filing the notice of appeal against the substantive decision and, to the extent required if any, the notice of appeal concerning the costs decision.
5. The owner's appeal against the costs decision was on the grounds of error of law for absence of procedural fairness. The appellant said, uncontradicted, that she had not received the respondent's cost application or costs submissions so did not know that the respondent had sought costs and had nothing to which to respond.
6. On the substantive appeal the appellant said that the primary decision had not given reasoned consideration to or determination of two of the three issues in the application, only the rear sliding door/window issue. The primary decision had also mistakenly attributed reliance upon the AGWA report to her which reflected on the weight of her other evidence.
7. The owner also sought leave, in respect of the first issue involving the rear sliding door/window, to rely upon the further evidence from the builder described above.
8. If the other grounds were not sufficient, the appellant complained that the respondent's evidence had not been excluded for non-compliance with directions. She had not sought to re-list the matter and did not raise the non-compliance issue at the primary hearing. The appellant submitted she was not given the opportunity because of the way that the hearing was conducted. Since we have determined the appeal on other grounds, we have not dealt further with this ground.
9. At the final hearing the appellant said that her first claim for the rear sliding door/window had reduced to $7,000-8,000 because the builder had now removed and reinstated the flashing and rear door/window set.

Principles governing appeals

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides as follows: "(1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1). (2) Any internal appeal may be made - (a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may - (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances."
2. Clause 12 of Schedule 4 to the NCAT Act states: "An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied 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)."
3. A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
4. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179.
5. These categories are not exhaustive of errors of law that give rise to an appeal as of right. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as specifically included: 1. whether the Tribunal provided adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether it applied a wrong principle of law; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration; 6. whether it took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision was legally unreasonable.
6. Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]-[79] and [84(2)] as follows: "76 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. 78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. 79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to NCAT Act (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55]. … 84 The general principles derived from these cases can be summarised as follows: … (2) 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."
7. Even if the appellant establishes that it may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the NCAT Act, the Appeal Panel has a discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]). The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Panel's consideration of whether or not to exercise that discretion.
8. The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37]-[39]: "37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act: 'In order to fall within this paragraph the appellant must be able to point to evidence which: (1) is significant; and (2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.' 38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]: 'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said: '23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud. 24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).' 39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown: 'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'"
9. In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated 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."

Consideration

1. We granted leave for the appellant to rely upon the builder's further evidence about flashing. It was submitted by the appellant that her builder, Itabella Constructions Pty Ltd retuned to site to remove the downstairs window and install flashing after the 1 December 2022 Tribunal order. In doing so it was revealed that the respondent's supplier had, in fact, installed new flashing . However the evidence established that the flashing had been installed incorrectly. The newly installed flashing had been installed flat, rather than folded up to prevent water ingress. It appeared to us that the critical further work on the windows to ascertain the existence of flashing occurred after the hearing and that this was evidence that was not reasonably obtainable by the appellant at the time of primary hearing.
2. In the event, it does not matter whether or not leave was granted to rely upon that further evidence. There were two clear errors of law that justified the appeal being upheld.
3. The first was the absence of consideration and determination of two of the three issues before the Tribunal. As we have set out above in dealing with the principles governing appeals, an absence of consideration of a relevant issue and an absence of reasons are errors of law.
4. The second was the absence of procedural fairness in respect of an opportunity to respond to the respondent's costs submission. This has also been set out above in dealing with the principles governing appeals as an error of law. The alternative conclusion would effectively require a party to check with the registry if any submissions had been received under directions enabling a costs or any other application. It would effectively excuse a party who filed but did not serve such an application.
5. NCAT Act s 81 provides as follows: "(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following - (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance."
6. It seems to us that the parties require a fresh hearing on all issues, including the opportunity for the respondent to deal with the further evidence from the builder concerning the defective flashing under the rear sliding door/window and the reduced cost claimed by the owner. The outcome of that re-hearing will determine any costs consequences.

Orders

1. We make the following orders: 1. Appeal allowed. 2. Set aside the orders made 1 and 21 December 2021 in HB 21/12430. 3. Remit the proceedings for re-determination before a differently-constituted Tribunal. 4. In respect of costs of this appeal the following orders are made: 1. Any application for costs, including further evidence and submissions in support of the cost application, is to be filed and served by the costs applicant within 14 days after the date of these orders; 2. Any further evidence and submissions in response are to be filed and served by the costs respondent within 28 days after the date of these orders; 3. Any submissions in reply are to be filed and served by the costs applicant within 35 days after the date of these orders; 4. Submissions are to include submissions about whether a hearing of any costs application can be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW); 5. If no application is made under (a) then there is no order as to the costs of the appeal.

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: 17 June 2022