White v Sunrise Pools Australia Pty Ltd

Home Building Application

1. The home owner sought orders that Sunrise Pools pay her $47,295.63 for loss because of breach of statutory warranty. Her reasons for requesting the orders were stated to be: 1. The cost of repairing and replacing a glass wall installed by Sunrise Pools which is leaking; 2. The cost of rectifying a significant pool leak, with water running under the pool and into the house and causing significant damage to the home and structure; 3. Repair design flaw of pool edge which required angled fixing to ensure no access to dangerous ledge; 4. The piers were drawn level with the pool but built approximately 40mm protruding from the edge. Walls need to be built out to provide the correct aesthetic finish; 5. The front of the pool is also unfinished with nails and other objects protruding through the concrete and the concrete is starting to chip away and fall off.
2. Before the hearing, the application was amended to seek $42,363.57.
3. It was uncontroversial that the work done by Sunrise Pools was "residential building work" within the Home Building Act.

The Hearing

1. The home owner chose not to be legally represented and, on 2 May 2017, at the hearing, the Tribunal granted her leave to be represented by her husband.
2. The home owner claimed compensation for eight items and relied upon the opinion of three experts in support of her claim, contained in the following documents: 1. an expert report and letter written by Matt Sheridan of Sherocon Building and Construction Management concerning the leaking of the pool, lack of drainage and "unsightly" exposed nails and wire; 2. an email from Sean Nolan, a shopfitter and joiner with extensive experience in the glass industry, to the applicant's husband and also a quotation from Mr Nolan as evidence of the cost of rectifying the glass wall and other items; and 3. an expert report of Stephen Grech, architect, relating to a ledge inside the pool and the protrusion of the concrete piers beyond the facing of the pool.
3. None of the reports from the applicant's experts referred to or complied with the Expert's Code of Conduct contained in NCAT Procedural Direction 3 ("the Expert Code of Conduct").
4. Sunrise Pools relied upon an expert report of Mr Edward Brincat of Auspro Building Services. Mr Brincat is a Bachelor of Civil Engineering, mediator, security of payments adjudicator, with 41 years' experience in the building industry who had appeared as an expert witness in many matters. Mr Brincat's report referred to and complied with the Expert Code of Conduct. Mr Brincat was available for cross-examination at the hearing.
5. At the commencement of the hearing, as recorded in the Tribunal's reasons, the home owner's husband advised the Tribunal that he had not made the home owner's witnesses available for cross examination as requested by Sunrise Pools because he thought it unnecessary, and that he did not intend to cross examine Sunrise Pools' witnesses who were in attendance.

The Tribunal's decision

1. The Tribunal preferred the evidence of Mr Brincat over the evidence of the home owner's experts.
2. The Tribunal was not satisfied that six of the eight items claimed by the home owner were defects for which Sunrise Pools was liable, but was satisfied that Sunrise Pools was liable for two items. In relation to the first of these (protruding piers), the Tribunal ordered Sunrise Pools to pay the home owner $726. In relation to the other item, unsightly finish in the concrete, the Tribunal ordered, having regard to s 48MA of the Home Building Act, that Sunrise Pools return to the site and remedy the defect.

Orders Sought and Grounds of Appeal

1. The home owner relied upon a number of grounds of appeal. These were as follows: 1. In circumstances where the applicant was self-represented, the member denied procedural fairness to the applicant when the member permitted the hearing to proceed when the member did not inform the applicant that: 1. The member would not accept the evidence of her witnesses as there had been no cross-examination; 2. Without informing the applicant that the applicant's evidence did not comply with the [Expert] Code of Conduct and did not allow the applicant the opportunity to correct this error; 3. By deciding the issue about the glass without giving the applicant the proper opportunity to be heard. 1. The member wrongly accepted the evidence of Mr Brincat on the basis set out in paragraph 40 of the member's decision. The only matter relevant to the acceptance of the evidence was whether Mr Brincat had qualifications to opine up [sic] the subject matter on which he was giving evidence. 2. The member made an error of law in applying the contract when the member found that the specification required a section of glass of 5.5M in length be supplied, found the builder did not supply that section of glass and the builder was absolved from that breach as the builder's expert said such a section of glass was not available. 3. The member made an error of law in applying s 18B(1)(a) of the Home Building Act 1989 when the member allowed the builder to argue that he was entitled to not meet the specification as the builder's expert said such a section of glass was not available. 4. The member made an error of law when he made a finding that the builder's work was not defective or otherwise not in accordance with the provisions of the contract when the member rejected the argument that the builder's change to the glass should have been certified by the builder as complying with AS 1170 and AS 1288. 5. Made an error of law in directing that the builder return to rectify defects when the contract has been terminated. 6. The member made an error of law when finding that a tiler who followed the plans prepared by the respondent should have ignored those plans to otherwise make the construction comply with the Home Building Act. 7. The member made an error of law when finding that the respondent was not responsible for waterproofing.
2. The home owner sought orders requiring Sunrise Pools to pay her various sums of money.
3. At the hearing, the home owner's husband also sought leave to appeal against the Tribunal's costs decision. The decision, made on 30 June 2017, was that the home owner pay 90% of the costs of Sunrise Pools.

The jurisdiction of the Appeal Panel

1. There is no dispute that the decision of the Tribunal from which the appellant seeks to appeal is an "internally appealable decision" to the Appeal Panel: see ss 27(1) and 80(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act").
2. An internal appeal from a final decision may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds: NCAT Act, s 80(2)(b).
3. To the extent that the appeal does not raise a question of law, the appellant seeks leave of the Appeal Panel to appeal the findings of the Tribunal below. Where such leave is sought to appeal from a decision of the Consumer and Commercial Division of the Tribunal, the Appeal Panel's power to grant leave is set out in cl 12 of Sch 4 to the NCAT Act. That clause relevantly provides as follows: "12 Limitations on internal appeals against Division decisions (1) 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)."
4. The appellant submits that she has suffered a substantial miscarriage of justice on the grounds set out in cl 12(1)(a) and (b) (that is, the decision was not fair and equitable and it was against the weight of the evidence).
5. The appellant lodged her appeal on 8 June 2017, 31 days after she received the Tribunal's decision. The respondent did not object to the Appeal Panel granting an extension of time for the lodgement of the appeal under s 41 of the NCAT Act.
6. The relevant principles in relation to an extension of time in which to bring an appeal are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]. The delay in filing the appeal was short and there is little prejudice to the respondent in granting an extension of time. We have some hesitation in granting an extension of time, given that we have found that the appellant's grounds should be rejected. However, they were not entirely without merit and, given that the respondent does not object, we have decided to grant leave to appeal out of time.

Ground 1: Procedural Fairness

1. The first ground raises a question of law. Leave of the Appeal Panel is not needed in relation to this ground.
2. The ground of a denial of procedural fairness is premised upon the applicant being self-represented. In Bauskis v Liew [2013] NSWCA 297, Gleeson JA (with whom Beazley P and Barrett JA agreed) summarised the relevant principles and authorities relating to the Court's duty to self-represented litigants as follows: "67 First, the Court's obligation in the case of a self-represented litigant is to give sufficient information as to the practice and procedure of the Court to ensure that there is a fair trial to both parties. The application of this principle will vary depending upon the circumstances of the case: see Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 per Basten JA at [48]; Abram v Bank of New Zealand (1996) ATPR 41-507, 43,341, 43,347; Microsoft Corporation v Ezy Loans Pty Ltd [2004] FCA 1135; (2004) 63 IPR 54; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154. 68 Secondly, the Court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. This is why the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just: see Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100 at [95]; Barghouthi v Transfield Pty Ltd [2002] FCA 666; (2002) 122 FCR 19 at 23; NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 944 at [11]; Nagy v Ryan [2003] SASC 37 at [52]- [53]. 69 Thirdly, the duty of a trial judge to assist an unrepresented litigant does not extend to advising the litigant as to how his or her rights should be exercised. That is, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant: see Bhagwanani v Martin [1999] SASC 406; (1999) 2004 LSJS 449; Clark v State of New South Wales (No 2) [2006] NSWSC 914. 70 Fourthly, the trial judge must remain at all times the impartial adjudicator of the matter, measured against the touchstone of fairness. In this regard, an unrepresented party is as much subject to the rules as any other litigant: Rajski v Scitec Corporation Pty Ltd (Court of Appeal, 16 June 1986, unreported) per Samuels JA at 14."
3. These principles are applicable to the Tribunal: Cominos v Di Rico [2016] NSWCATAP 5 at [63]-[64].
4. Also relevant is s 38(5) of the NCAT Act, which provides: "(5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings."
5. The home owner's first complaint under this ground is that the member allowed the hearing to proceed without informing the home owner (or her husband) of certain matters. On appeal, the home owner's husband, Mr White, represented the home owner again. Mr White said in oral submissions that, in fairness, the hearing should have been adjourned. He said he had not asked for that but he did not know that the Tribunal was not going to give any weight to the home owner's evidence. If Mr White had known this, he submitted, he would have "filled in the form" (meaning the Expert Code of Conduct) and made his witnesses available for cross examination. He said it would have been easy for the Tribunal member to say, "you pay the costs of today, and we'll come back."
6. It is not correct that the home owner was self-represented. She was represented by her husband, as agent (NCAT Act, s 45(1)(b)(i)). However, even if the principles applicable to self-represented litigants apply in the circumstances of this case, we are not satisfied that the Tribunal failed to comply with the principles of procedural fairness or its duty to a self-represented litigant.
7. The Tribunal was not required to warn Mr White, in the circumstances of the case, that it would not accept the home owner's evidence or would give it little weight or that the evidence relied upon did not comply with the Expert Code of Conduct. The pre-trial directions, relevant parts of which are reproduced above, provided that parties should ensure that they have read the Tribunal's Procedural Directions (including directions relating to expert witnesses). Those directions are available on the Tribunal's website. Mr White said at the appeal hearing that he had not read the Procedural Direction concerning expert witnesses. He had a reasonable opportunity to do so.
8. Mr White did not apply for an adjournment at the hearing. In some circumstances, a tribunal's obligation to accord procedural fairness may require it to take the initiative to adjourn where a party has not requested an adjournment: Sullivan v Department of Transport (1978) 1 ALD 383; (1978) 20 ALR 323, Deane J at ALR 343; Civil Aviation Safety Authority v Ovens [2011] FCAFC 75; (2011) 121 ALD 514; AQK v Commissioner of Police, NSW Police Force [2016] NSWCATAD 223 at [10]. However, it was not procedurally unfair for the Tribunal to fail to take the initiative to adjourn in the circumstances of this case. The home owner had been alerted to the Tribunal's procedural directions by the Tribunal's directions in the matter. Adapting what Gleeson JA said in Bauskis v Liew [2013] NSWCA 297 at [69], it was not the Tribunal's function to give her, or her husband, advice.
9. The Tribunal was not required to adjourn in order to allow Mr White to produce the home owner's witnesses. Sunrise Pools tendered a letter sent to the home owner, several weeks before the hearing, stating that it required the home owner's witnesses for cross-examination. The Tribunal was therefore aware that the home owner was on notice that those witnesses would be required by Sunrise Pools. The Tribunal did not, in our view, have a duty to inform Mr White that the evidence of his witnesses would be given less weight because they were not made available for cross-examination. It is not the case, as alleged in Ground One of the Notice of Appeal, that the member did not accept the evidence of the home owner's witnesses as there had been no cross-examination. There were a number of reasons why the Tribunal member preferred the evidence of Sunrise Pools, and only one of them was that the home owner's witnesses were not made available for cross-examination.
10. The third matter relied upon by the home owner in respect of the alleged breach of procedural fairness, is that the Tribunal decided "the issue about the glass" without giving her a proper opportunity to be heard. We understand "the issue about the glass" is the home owner's contention that Sunrise Pools should have used a single piece of glass rather than two pieces in the construction of a glass wall. The home owner did not clearly explain on appeal why she said she was denied procedural fairness in respect of this issue. She had an opportunity to lead evidence about the glass and did so. There was no denial of procedural fairness.
11. We are satisfied that the Tribunal gave sufficient information to Mr White as to the practice and procedure of the Tribunal to ensure that there was a fair hearing to both parties. The home owner has not demonstrated that the Tribunal breached its duty to her, or to her husband as an agent without legal qualifications.
12. The Tribunal is required to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal relating to the proceedings, if requested to do so (NCAT Act, s 38(5)(b)). Mr White does not say that he requested the Tribunal to explain an aspect of Tribunal procedure, or any Tribunal ruling or decision, and the Tribunal failed to do so. The home owner has not demonstrated any failure on the part of the Tribunal to comply with s 38(5).
13. For the reasons given above, the home owner has not established that the Tribunal erred as alleged in Ground One.

Ground 2: Expert Evidence

1. The home owner's second ground of appeal is that the member wrongly accepted the evidence of Mr Brincat (the expert relied upon by Sunrise Pools) on the basis set out in paragraph 40 of the member's decision. This ground of appeal is framed in terms of relevance: it is alleged that the Tribunal erred in accepting the expert's evidence for reasons which were not relevant. We are satisfied that this identifies a question of law, and leave is not required for the home owner to appeal on this ground.
2. At paragraphs 38 to 41 of his reasons, the Tribunal member said the following: "38. The respective qualifications of the experts were an important consideration for the Tribunal accepting the technical opinions expressed. 39. In the case of Mr Sheridan he is said to be a licensed builder of 25 years' experience but without mention of any particular expertise in regard to swimming pools. Mr Nolan is a shopfitter and joiner with extensive experience in the glass industry, whilst Mr Grech is a registered architect. 40. Mr Brincat on the other hand is a bachelor of civil engineering, mediator, provides expert determinations, and a security of payments adjudicator with 41 years' experience in the building industry and has appeared as an expert witness in many matters. 41. On the Tribunal's assessment of the respective qualifications, and without intending any discourtesy to the applicant's experts the Tribunal find Mr Brincat's qualifications are superior to those of Mr Sheridan, Mr Nolan and Mr Grech in being able to express a view as to the quality and completeness of the subject work and the usual practices within the building industry in regard to the order in which work is performed and by which trades."
3. The home owner submitted that the only matter relevant to the acceptance of the evidence was whether Mr Brincat has the qualifications to give an opinion on the subject matter on which he was giving evidence.
4. We do not consider that the Tribunal member made any error in paragraph 40 of his reasons. Mr Brincat's qualifications and experience are relevant to the weight to be given to his evidence, and to his expertise. An expert witness is required to include in his or her report "the expert's qualifications as an expert on the issue the subject of the report" (NCAT Procedural Direction 3, cl 16(a)). It is not merely the expert's qualifications which are relevant, it is also his or her experience. An expert is defined, for the purposes of Procedural Direction 3, as "[a] person who has specialised knowledge based on the person's training, study or experience and who give[s] evidence of an opinion based wholly or substantially on that knowledge" (see the table above cl 6 in NCAT Procedural Direction 3). The qualifications and experience of Mr Brincat, referred to in paragraph 40 of the Tribunal's reasons, were generally relevant to his expertise on issues the subject of the report. The home owner did not submit that any particular aspect of his experience or qualifications was not relevant.
5. We are not satisfied that the home owner has established that the Tribunal made any error of law or any other error in relation to this ground.

Ground 3: Error in applying contract

1. The third ground of appeal is that the Tribunal erred in applying the contract when finding that the specification required a section of glass of 5.5M in length be supplied, that the builder did not supply that section of glass and that the builder was absolved from that breach as the builder's expert said such a section of glass was not available.
2. We are satisfied that this ground raises a question of law and that leave is not necessary in relation to this ground.
3. The Tribunal's reasons in relation to the glass wall were as follows: "59 Mr Nolan's evidence in regard to the glass wall cannot be given any weight for the reasons already provided. 60 I have examined the contract and am satisfied that the contract calls for a glass wall 400mm high by 5.5 m long (clause S2.5). There is no requirement in the contract that the wall should be constructed from a single sheet of glass. However, there is an obligation on the builder to adopt good building practices. If that means that the wall can be built in a single piece, then one would expect (at the owner's [sic] did) that it would be done in that way. 61 However, the evidence of Mr Brincat is that the maximum width of a sheet of glass is 5.1m. The quotation provided by Mr Nolan for remedial work refers to glass of 5.28m width. I am therefore satisfied it is more likely than not that it was never possible for the builder to construct the wall using a single sheet of glass because a sheet of glass of the required width was not available. Hence the construction of the glass wall using two sheets of glass is not found to be contrary to the contractual obligation or contrary to good building practice."
4. The relevant clause of the contract is in evidence. It required a glass wall of 5.5 metres in length to be supplied. As the Tribunal observed, the contract did not specify that the glass wall had to consist of one piece of glass.
5. The home owner's complaint appears to be that the Tribunal should have found that the builder breached the obligation in clause S2.5 of the contract by supplying more than one sheet of glass to construct the glass wall. However, the finding that it was not possible to construct the wall using a single sheet of glass was open on the evidence. Mr Brincat's evidence supported this finding. The evidence of Mr Nolan also supported it to some extent.
6. Mr White applied to tender new evidence on appeal showing that a piece of glass 5.5m long could have been obtained. Even if we were to admit the evidence, it does not demonstrate that the Tribunal made an error of law.
7. The home owner did not, in her Notice of Appeal, contend that she may have suffered a substantial miscarriage of justice because significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with) (NCAT Act, Sch 4, cl 12(1)(c)). Even if she had done so, the evidence on which Mr White seeks to rely is not evidence that was not reasonably available at the time the proceedings under appeal were being dealt with. We do not grant leave to admit the evidence, or to appeal on grounds other than a question of law.
8. The home owner has not established that the Tribunal made any error as alleged under this ground.

Ground 4: Home Building Act warranty

1. The fourth ground is that the Tribunal erred in applying s 18B(1)(a) of the Home Building Act when it allowed Sunrise Pools to argue that it was entitled not to meet the specification as its expert said such a section of glass was not available.
2. We are satisfied that this ground raises a question of law, concerning the proper application of the Home Building Act. However, this ground fails for similar reasons to Ground 3.
3. The home owner submitted that s 18B of the Home Building Act required the builder to comply with the relevant codes and standards. She submitted that the builder was required to comply with AS 1170 and AS 1288 and if the builder was allowed to change the design of the glass by installing two panels joined with a silicon joint, the builder was required to certify that the relevant standards had been met.
4. Under s 18B(1)(a) of the Home Building Act, the following warranty is implied into the contract between the parties: "a warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract."
5. The plan prepared by Sunrise Pools does not specify that the glass wall must consist of one piece of glass. Mr White has not drawn our attention to any plan or specification in the contract requiring the glass wall to consist of one piece of glass. Nor did Mr White draw our attention to the requirements of AS 1170 and AS 1288 (if they are in evidence).
6. The Tribunal was entitled to rely upon Mr Brincat's evidence that a piece of glass measuring 5.5 metres wide was not available. It was also entitled to find that the construction of the wall using two sheets of glass was not contrary to good building practice.
7. We are not satisfied that the Tribunal erred in the way suggested by Ground 4.

Ground 5: Rejection of Australian Standards argument

1. The fifth appeal ground is that the Tribunal erred in finding that the builder's work was not defective or otherwise not in accordance with the provisions of the contract when it rejected the argument that the builder's change to the glass should have been certified by the builder as complying with AS 1170 and AS 1288.
2. The home owner had put into evidence an email from Mr Nolan, a shopfitter and detailed joiner who claimed to have worked using glass for nearly 30 years. This email stated that the "silicone joint [in the glass wall] does not appear to be structurally adequate in accordance with AS1288-06".
3. The Appeal Panel's attention was not drawn to any evidence concerning compliance with AS 1170.
4. The Tribunal stated on this issue: "The assertion by Mr Nolan that the silicone join is non-compliant with AS 1288-2006 is non-specific and contains no calculation and does not demonstrate that the join is not compliant with the code." The Tribunal had earlier indicated that Mr Nolan's evidence did not comply with the Expert Code of Conduct, that Mr Nolan's qualifications were inferior to those of Mr Brincat, and that his evidence was not independent as he quoted for the work to be done.
5. There was no error in the Tribunal rejecting Mr Nolan's evidence for the reasons it did. The home owner has not identified the source of any obligation on the part of the builder to certify that the work complied with AS 1170 and AS 1288.
6. This ground of appeal must be rejected.

Ground 6: Rectification order

1. The sixth ground of appeal is that the Tribunal made an error of law in directing the builder to return to rectify defects when the contract had been terminated. We are satisfied that this ground raises a question of law.
2. The Tribunal relied upon s 48MA of the Home Building Act as a basis for ordering Sunrise Pools to return to the site and carry out work. Section 48MA provides: "48MA Rectification of defective work is preferred outcome in proceedings A court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the responsible party) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome."
3. There is nothing in s 48MA which indicates that the provision cannot apply after a contract has been terminated. We find that it applies in such circumstances.
4. The Tribunal correctly applied the principle in s 48MA of the Home Building Act. No error of law has been demonstrated.

Ground 7: Foothold constructed in breach of National Construction Code

1. Ground 7 is that the Tribunal made an error of law when finding that a tiler who followed the plans prepared by Sunrise Pools should have ignored those plans to otherwise make the construction comply with the Home Building Act. This raises a question of law.
2. Ground 7 relates to a foothold created on the internal northern edge of the pool which was not compliant with the National Construction Code. The Tribunal's reasons in relation to the foothold are as follows: "66. There is no dispute that such a foothold exists and that it is in breach of the NCC [National Construction Code]. 67. However Mr Brincat's evidence is that the tiler employed by the owner ought to have corrected that defect before commencing tiling. I accept the only expert evidence available on the issue and determine that it is normal and correct building practice for a horizontal surface as constructed by the respondent to be corrected to a 45 degree angle by the tiler. 68. As the tiler was employed by the owner I am not satisfied this item is a defect for which the builder is liable."
3. There is no dispute that the tiler was engaged by the home owner and that Sunrise Pools was not responsible for his work. The question is whether the Tribunal should have found that Sunrise Pools was responsible for the foothold (which does not comply with the National Construction Code). Sunrise Pools prepared the plans and constructed the horizontal surface. The tiler tiled that surface.
4. Mr Brincat's written evidence was that "the northern face tiled edge present as a foothold but these works completed by the owner … NB. The structure was completed as per the engineer's requirements and design and thus the tiler should have installed a fillet at time of installing finishes." Neither party provided the Appeal Panel with a sound recording of the hearing or with the transcript, so we are unaware of what Mr Brincat said at the hearing.
5. As indicated above, under s 18B(1)(a) of the Home Building Act, the builder is taken to have provided "a warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract." There is no complaint that the builder did not do the work in accordance with those plans. The complaint appears to be about the plans themselves.
6. The home owner provided little evidence in support of her claim concerning the foothold. Nor did she provide any detailed submissions on the issue. There is no evidence of the contract between the tiler and the home owner.
7. It is not clear to us, on the evidence, whose work caused the non-compliance. The expert evidence was that the structure was completed as per the engineer's requirements and design. The fault, then, may have been with the engineer, or it may have been with the tiler, as the Tribunal found. However, having accepted the expert evidence of Mr Brincat based on his qualifications and experience, there was no error in the Tribunal accepting his evidence that it would be normal and correct building practice for the tiler to have corrected any defect in the construction of that surface to a 45 degree angle.
8. We are not satisfied that the Tribunal made an error of law when finding that Sunrise Pools was not liable for the defect. There was evidence to support this finding.

Ground 8: Waterproofing

1. The eighth ground of appeal is that the Tribunal made an error of law when finding that the respondent was not responsible for waterproofing. This raises the construction of the contract, or possibly the meaning or application of the statutory warranties, and raises a question of law.
2. Mr White did not clearly explain where it is in the Tribunal's reasons that it found that Sunrise Pools was not responsible for waterproofing. We take him to be referring to the Tribunal's finding, on the basis of Mr Brincat's evidence, that it was the responsibility of the tiler to ensure that the area in question was properly sealed before commencing tiling.
3. The home owner seeks leave to adduce new evidence relevant to this ground. This is evidence from a company called Aqua Leak as to the source of the leak. Mr White says that the evidence was not available at the time of the hearing.
4. We do not grant leave to the home owner to adduce this evidence. The evidence consists of an email and invoice from Aqua Leak providing an opinion as to the source of the leak. Contrary to the home owner's submission, this or similar evidence could have been obtained prior to the hearing. Further, the company employee or officer who wrote the email has not complied with the Expert Code of Conduct and his qualifications and experience are not referred to in the email.
5. The home owner did not contend that any provision in the contract required Sunrise Pools to waterproof the pool. Nor did he explain why the expert evidence, to the effect that it was accepted building practice for the tiler to do the waterproofing, should be rejected. The contract was terminated before Sunrise Pools had completed the work. The owners then engaged a tiler. The Tribunal was entitled to find that it was the tiler's responsibility to waterproof the pool.
6. We are not satisfied that the home owner has demonstrated any error of law.
7. If we are wrong and this ground raises a question of fact, we would not grant leave to appeal. The home owner has not demonstrated that the Tribunal's findings were against the weight of evidence. We are not satisfied that the home owner has suffered a substantial miscarriage of justice, in the sense that she has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result: Collins v Urban [2014] NSWCATAP 17 at [79].

Leave to Amend Notice of Appeal to Appeal Against Costs Decision

1. Mr White sought leave, at the hearing, to amend the Notice of Appeal to appeal against the Tribunal's decision on costs. In its costs decision, the Tribunal ordered the home owner to pay 90% of the costs of Sunrise Pools.
2. The decision on costs was handed down on 30 June 2017, just over three weeks after the home owner filed a Notice of Appeal, and eight weeks before the appeal hearing. The home owner was required to lodge any appeal against the costs decision within 28 days (Civil and Administrative Tribunal Rules 2014 (NSW), r 25(4)(c)). She therefore needs the Appeal Panel's leave to appeal against that decision out of time under s 41 of the NCAT Act. She also needs the Appeal Panel's leave to amend the Notice of Appeal under s 53(1) of the NCAT Act.
3. The home owner did not make any mention of appealing the costs decision in her submissions, which were filed on 26 July 2017. The Appeal Panel was not aware that the home owner wished to appeal that decision until the hearing of the appeal on 28 August 2017.
4. Mr White explained that the reason the home owner had not lodged an appeal against the costs decision within time was that the registry staff had told him to bring the issue up at the hearing. He said he emailed the Tribunal on about 7 August 2017 and received a reply from the Tribunal on about 10 August 2017. He also said he thought that everyone was on notice about his intention to appeal the costs decision because of that email.
5. Mr White's email to the Tribunal was sent after the 28-day period for appealing the costs decision had expired. He did not bring to the hearing any proposed grounds of appeal concerning that decision, nor provide any persuasive reason why that decision was wrong.
6. The guiding principle for the NCAT Act, in its application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (NCAT Act, s 36(1)). The home owner had a duty to cooperate with the Tribunal to give effect to this principle (NCAT Act, s 36(3)(a)). By failing to lodge the appeal against the costs decision on time, or make any written submissions as to costs in the principal appeal proceedings, or articulate a ground of appeal in writing against the costs decision, the home owner failed to comply with this principle.
7. We are not persuaded that granting leave to amend the Notice of Appeal to include an appeal against the costs decision would facilitate the just, quick and cheap resolution of the real issues in the proceedings. The home owner has not identified any obvious error in the decision on costs at first instance, and she has not been successful on appeal. If the home owner were allowed to amend the Notice of Appeal to appeal against the costs decision, that would necessitate another hearing or, if the matter were determined on the papers, it would prolong the determination of this appeal.
8. In these circumstances, we do not consider that it is in the interests of justice to permit the home owner to amend the Notice of Appeal to appeal against the costs decision and we refuse leave to do so.

ORDERS

1. The Appeal Panel makes the following orders: 1. The time for the filing of the Notice of Appeal be extended to 8 June 2017 2. Leave to amend the Notice of Appeal is refused. 3. Appeal dismissed. 4. If either party seeks costs of the appeal, leave is granted to file and serve a short written submission on that issue within 14 days of the date of this decision. 5. Leave is granted for the other party to file and serve a short written submission in reply within a further 14 days. 6. Submissions should address the question of whether the Tribunal should dispense with a hearing on the issue of costs, pursuant to s 50 of the Civil and Administrative Tribunal Act 2013.

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: 21 November 2017