Williamson v Sovik

Appellant's grounds of appeal and submissions

1. Mr Williamson filed a Notice of Appeal on 8 July 2015. He states in the Notice of Appeal that he is seeking leave to appeal the decision of the Tribunal as it was not fair and equitable, against the weight of the evidence and because evidence is now available that was not reasonably available at the hearing.
2. Mr Williamson states in the Notice of Appeal that the decision was against the weight of the evidence because he believes that: it would be impossible for the [Tribunal] to ascertain the complete construction methods of the verandah roof structure without a complete set of construction plans. The [respondent] relied on "part" of the construction plans without taking the full information into consideration.
3. As to evidence that Mr Williamson says is now available that was not reasonably available at the hearing, he states in the Notice of Appeal that he wishes: to provide evidence from the draftsman that liaised with the original owners and who drew the construction plans as per the request of the original owners. The applicant and "Expert" are relying solely on the cross section of the plan. The floor plan and elevations conflict with the cross section on the plan. It is always the floor plan and dimensions that take precedence over sections and scale measurements.
4. Mr Williamson also states in the Notice of Appeal that the decision of the Tribunal was not fair and reasonable as "false and misleading documentation was provided by [the respondent]". He submitted that the sum of $30,665.89 compensation is "excessive and unrealistic".
5. The grounds of appeal in the Notice of Appeal are stated as follows: 1 I attended the tribunal hearing at the Bathurst Court House on the morning of 18/06/2015 at approx. 9.45am, only to be advised by court staff that the hearing had been adjourned. 2 I received the Notice of Order via email at 9.58 18/06/2015. I believe that the order may have been made prior to the date of the hearing as I requested an adjournment 2 days prior. 3 The evidence submitted to the tribunal by [the respondent] is false and deceptive. The evidence used in the claim has significant documentation missing, eg complete set of construction plans, of the property in question. It is impossible to ascertain the correct construction methods of the verandah roof structure without a complete set of construction plans. 4 The [respondent] purchased the property without obtaining a Pre-purchase inspection. If a pre purchase inspection had taken place prior to purchase, any issues pertaining to the property would have been evident.

Respondent's Reply to Appeal

1. Mr Sovik filed a Reply to Appeal on 30 July 2015. His written document addresses Mr Williamson's grounds of appeal, opposes any grant of leave to Mr Williamson to prosecute the appeal, states that he does not accept that the Notice of Appeal was filed within time and objects to the Appeal Panel extending the time for the making of the appeal.
2. It is convenient to deal with that last matter immediately. As we explained to the parties at the hearing, the decision of the Tribunal was given on 18 June 2015. Pursuant to reg 25(4)(c) of the Civil and Administrative Tribunal Rules 2014, unless the Tribunal grants an extension under s 41 of the Act, relevantly an internal appeal must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later).
3. The Notice of Appeal was filed on 8 July 2015. Therefore, it was filed well within the time required. The statement appearing in the Notice of Appeal that the Mr Williamson requires an extension of time in which to file the appeal was misconceived. Clearly, Mr Williamson, as he states, was asking for an extension of time, if needed, to "provide the necessary documentation to prove the false and frivolous claim". That was what Mr Sovik was responding to when he filed his Reply to Appeal.
4. It is not necessary to set out the contents of the Reply to Appeal. That is because on 19 August 2015 Mr Sovik filed with the Registry a letter which relevantly states that he wished to rely on an amended Reply to Appeal that was "recast" with additional material attached. The Reply filed on 30 July 2015 is therefore superseded. The papers to the amended Reply include many pages of very detailed submissions, and email correspondence between the parties.

Mr Williamson's documents

1. Mr Williamson filed documents with his Notice of Appeal on 8 July 2015. Relevantly these documents included: 1. A letter dated 29 June 2015 addressed to NCAT, being in part submissions in support of his appeal, which amplify his stated grounds of appeal, and being also in part evidence of his conversations with Mr Sovik. 2. A letter dated 8 June 2015, addressed to NCAT. Again, this letter is in part submissions and in part his account of conversations he had with Mr and Mrs Bolton in relation to the building of verandahs on their property. The Boltons were the previous owners of the Mr Sovik's property. This letter predates the hearing, but was not in the file and therefore was not referred to by the Tribunal in its reasons for decision. As we have noted the reasons for decision of the Tribunal state that no evidence had been filed by Mr Williamson. During the course of the appeal hearing we discussed this document with Mr Williamson. He said, and his wife who was present at the hearing confirmed, that this letter was sent to the Penrith Registry of the Tribunal, and to Mr Sovik. However, we note that no copy of this letter appears on the relevant Tribunal file. We further note that Mr Sovik told us that he never received a letter. Giving Mr Williamson the benefit of the doubt, we accept that he sent the letter to the Registry. 3. A letter of Mr Greg McLandsborough dated 16 June 2015. This letter states that "the plans for the construction of the new residence at Oberon were complied with under the direction of the Owner", and that the "drawings clearly indicate that the [front] Verandah is [below] the main roof in plan as per our instructions. The verandah roof structure was re-designed to attach to the residence below the guttering of the main roof an [aesthetic] feature as per the owners instruction". Again, this letter was not referred to by the Tribunal in its reasons for decision, and was not to be found in the relevant Tribunal file. 4. The plans for the construction of the Boltons' home; 5. A Scott Schedule with Mr Williamson's assessment of reasonable rectification costs.
2. Mr Williamson filed submissions on 12 August 2015. His principal submissions are: 1. The dispute between him and Mr Sovik was not dealt with in accordance with NSW Fair Trading's guidelines for dispute resolution. 2. At no time in Mr Sovik's original application was the issue of the verandah roof not being constructed in accordance with the plans raised; 3. While he was running late for the Tribunal hearing, he was only 10 minutes late and when he arrived he was told that the proceedings had been adjourned. He says that he did not question this as he had requested an adjournment and assumed that the adjournment had been granted. However, unbeknownst to him the hearing was in fact taking place; 4. The matter must have been decided prior to the Tribunal hearing as he received the notice of order only 28 minutes after the commencement of the hearing. He submits that this time frame would not have allowed for the hearing to take place, for the member to consider the matter and for the reasons for decision to be typed and emailed. 5. Various findings of the Tribunal are "false". Here we note that the findings he objects to are, in our view, the Tribunal's restatement of Mr Sovik's concerns. 6. NSW Fair Trading failed in its duty of care to both parties by not following their own dispute resolution process, resulting in unnecessary costs and the engagement of experts.
3. As the appeal hearing unfolded, five principal concerns of Mr Williamson crystallised: 1. NSW Fair Trading failed in its duty of care to both parties by not following their own dispute resolution process. 2. He was denied procedural fairness in that the Tribunal hearing proceeded in his absence, in circumstances where he attended the Bathurst Court for the hearing and was told by a Registry official at the Bathurst Court House that the proceedings have been adjourned. 3. The Tribunal had "pre-judged" the application, in that the matter was listed for hearing at 9.30am on 18 June 2015, and the reasons for decision were received by him at 9.58am. 4. The reasoning of the expert report relied on by Mr Sovik was defective, in that at no point did the expert Mr Percy deal with the size of the area of rainwater catchment or consider that additional downpipes or 'spreaders' should have been installed, both of which issues he says contributed to the leaking roof. 5. He constructed the verandah in accordance with the specific directions of the original owners, Mr and Mrs Bolton.
4. We shall refer to these issues of concern as respectively grounds 1 to 5. Before we consider each of these grounds in turn, it is appropriate to indicate the nature of the appeal and the principles governing leave to appeal.

Nature of the Appeal

1. At the commencement of the hearing of the appeal we explained to the parties, each of whom was not represented by a legal representative, the bases upon which appeals from decisions of the Consumer and Commercial Division Appeals may be made.
2. The Act provides for appeals as of right on any question of law, and appeals with leave of the Appeal Panel on any other ground: see s 80(2)(b) of the Act.

Error of law

1. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered the requirements for establishing an "error of law" giving rise to an appeal as of right and noted at [11] that, in circumstances where appellants are not legally represented, it is apposite to approach the issue by looking at the grounds of appeal generally. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast referred at [13] to the following as constituting errors of law: 1. (1) Whether there has been a failure to provide proper reasons. 2. (2) Whether the Tribunal identified the wrong issue or asked the wrong question. 3. (3) Whether a wrong principle of law has been applied. 4. (4) Whether there was a failure to afford procedural fairness. 5. (5) Whether the Tribunal failed to take into account a relevant (mandatory) consideration. 6. (6) Whether the Tribunal took into account an irrelevant consideration. 7. (7) Whether there was no evidence to support a finding of fact. 8. (8) Whether the decision was so unreasonable that no reasonable decision-maker would have made it.

Appeal with leave

1. Schedule 4, clause 12 of the Act states that the Appeal Panel may grant leave to appeal 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).
2. We note that in Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized at [71] and [79] as follows: [71]. . . [I]t can be seen 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. . . . [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 . . . 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, 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."
3. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel of the Tribunal conducted a review of the relevant cases at [65] - [79] and concluded at [84]: The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, 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: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (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.
4. As was explained in Pholi v Wearne [2014] NSWCATAP 78 at [32]: Even if the appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.

Ground 1: NSW Fair Trading failed in its duty of care

1. This ground was discussed at length during the appeal hearing. In summary, Mr Williamson, and his wife, considered that they had been treated unfairly in circumstances where: 1. Mr Sovik had lodged a dispute to NSW Fair Trading seeking orders that Mr Williamson rectify the leaking verandah; 2. Mr Williamson was willing to rectify the leaking verandah; 3. Mr Sovik had changed his mind and refused to allow Mr Williamson to rectify the work. 4. The NSW Fair Trading website states that a builder must comply with a rectification order made by an inspector.
2. We understand Mr Williamson's concerns. However, the NSW Fair Trading website and other publications relied on proceed on the premise that the parties have agreed to the alternative dispute resolution process, including mediation, offered by NSW Fair Trading. While either party can file a complaint with NSW Fair Trading, if either party declines to participate, or changes their mind during the dispute resolution process, there is little that NSW Fair Trading can do, otherwise than advise the parties of alternative dispute resolution processes. One of these, and the one chosen by Mr Sovik, was to invoke the jurisdiction of the Tribunal pursuant to s 48K of the Home Building Act 1989 (the HBA).
3. Mr Williamson filed in his appeal papers a letter to him from NSW Fair Trading dated 9 February 2015. That letter relevantly states: I refer to the complaint lodged with Fair Trading concerning residential building work . . . work carried out . . . [in] Oberon by you. The matter has been referred to me for inspection however; because Mr Sovik does not want you back to carry out rectification work it is inappropriate for me to continue to attempt to resolve the dispute between you and [Mr Sovik]. As this matter remains unresolved, Mr Sovik will need to consider the options available to [him]. These include: Lodging a claim with the Home Warranty Insurance provider A claim at the NSW Civil & Administrative Tribunal (NCAT) Independent legal advice
4. In summary, this course was open to Mr Sovik and the fact Mr Sovik did not engage in the NSW Fair Trading dispute resolution process did not affect the jurisdiction of the Tribunal. This ground of appeal is therefore irrelevant to the Appeal Panel's role and function. That is because the ground of appeal neither involves an error of law by the Tribunal or some other error in respect of which leave needs to be granted.
5. Accordingly, this ground of appeal fails.

Ground 2: Mr Williamson was denied procedural fairness

1. The second ground of appeal is that Mr Williamson was denied procedural fairness in that the Tribunal hearing proceeded in his absence, in circumstances where he attended the Bathurst Court for the hearing and was told by a Registry official at the Bathurst Court House that the proceedings have been adjourned.
2. A denial of procedural fairness is an error of law and no leave to appeal is required.
3. The reasons for proceeding in the absence of Williamson are set out at length in the Tribunal's reasons for decision. In summary, the reasons: 1. Indicate Mr Williamson had sought an adjournment on 17 June 2015 that he was seeking an adjournment for a period of one month due to an abscessed tooth and because he was a type 1 diabetic. (We note that Mr Williamson had in fact sought an adjournment on the afternoon of 16 June 2015. That request in turn been passed on to the Tamworth Registry on 17 June 2015.) 2. Refer to the directions of the Deputy President and Head of the Consumer and Commercial Division of the Tribunal concerning adjournments. 3. Refer to Mr Williamson's failure to comply with directions. 4. Refer to the decision of the NSW Court of Appeal in AHB v NSW Trustee and Guardian [2014] NSWCA 40 which stated that ordinarily the Court requires an explanation on oath from a medical practitioner of the illness and for the applicant's inability to attend a hearing. 5. Noted that at a directions hearing on 9 April 2015 the Tribunal had indicated that the proceedings would proceed to finality at the hearing on 18 June 2015.
4. At the appeal hearing Mr Williamson stated that he arrived at the Tribunal hearing about 10 minutes late. (We note that in his Notice of Appeal states that he arrived at approximately 9.45 am, that is, about 15 minutes late.) He told us that a Registry official informed him that the proceedings had been adjourned. He was not too surprised as he had sought an adjournment two days before, did not receive a response, and therefore concluded that his application for an adjournment had now been granted. Mr Sovik stated that the appeal commenced about a few minutes late and was about 15 or 20 minutes in duration. We note that, based on Mr Williamson's submissions (which could not be verified from the files or Tribunal records) it appears that the Tribunal hearing was actually proceeding while he was in the precincts of the Bathurst Court House.
5. Mr Williamson told us that if he had attended the hearing he would have spoken to his letter of 8 June 2015, and sought to have handed to the Tribunal the letter of Mr Greg McLandsborough of 16 June 2015. We will deal with each of these documents below.
6. We asked Mr Williamson whether or not he had put Mr Sovik on notice that he wishes to cross-examine his expert, Mr Percy. He said that he did not, as he assumed that Mr Percy would be at the hearing.

Mr Williamson's letter of 8 June 2015

1. As we noted above, the letter of 8 June 2015 is in part submissions and in part his account of conversations he had with Mr and Mrs Bolton in relation to the building of verandah on their property. Relevantly, Mr Williamson states that he attended Mr Sovik's property on 20 October 2014 to inspect the verandah roof. He says that It was at this time that I recommended the installation of 'spreaders' to the main roof guttering to assist in the disbursement of the roof water from the catchment area as it is my belief that the water catchment of the main roof area is causing the water to overflowing over the back of the guttering and into the verandah ceiling in the corner of the hip of the verandah roof.
2. Mr Williamson also states in his letter that: Having the downpipes charged to the rain water tank is also an issue. The water level within the charged downpipes impedes the flow of water to the rain water tank. This is also adding to the problem in heavy rain as the water cannot flow away fast enough.
3. He concludes: Two (2) spreaders need to be installed to the main roof guttering above the north-east verandah. I also recommend to disconnect the charged downpipe on the corner of the north-east verandah to allow water to disburse more rapidly. I strongly believe that by performing the above recommended remediation works, that the issue will be solved.
4. We accept entirely that these opinions are Mr Williamson's strong beliefs. However, we make the following observations: 1. As the Tribunal's Procedural Direction 3, Expert Witnesses, makes plain, the Tribunal may rely on evidence from expert witnesses to reach a conclusion about a technical matter or area of specialised knowledge that is relevant to an issue to be determined in proceedings. 2. It is important that experts' opinions are soundly based, complete and reliable. 3. An expert has a number of general duties to the Tribunal. These include: 1. An expert witness has an overriding duty to assist the Tribunal impartially on matters relevant to the expert witness's area of expertise. 2. An expert witness's paramount duty is to the Tribunal and not to any party to the proceedings (including the person retaining the expert witness). 3. An expert witness is not an advocate for a party. 1. An expert's report must include the following: 1. (a) the expert's qualifications as an expert on the issue the subject of the report; 2. (b) the facts, and assumptions of fact, on which the opinions in the report are based (a letter of instructions may be annexed); 3. (c) the expert's reasons for each opinion expressed; 4. (d) if applicable, that a particular issue falls outside the expert's field of expertise; 5. (e) any literature or other materials used in support of the opinions. 6. (f) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out; 7. (g) in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report); 8. (h) an acknowledgement that the expert has read the experts' code of conduct and agrees to be bound by it.
5. Mr Williamson may well be in an expert in the sense described above. But his letter of 8 June 2015, where in effect he purports to give an expert opinion, does not in any relevance sense comply with the Deputy President's Practice Direction 3.
6. Even if did, for obvious reasons, Mr Williamson is not an impartial or independent witness: he is a party to the proceedings, he is the person being sued by Mr Sovik. When faced with a choice between the lengthy, detailed and persuasive reasons of Mr Percy, contained in a report which confirms with the Deputy President's Practice Direction 3, and the opinion of a party to the proceedings who so happens to be qualified as a builder himself, it is understandable, and indeed likely, that a Tribunal would prefer the evidence of the independent expert witness.

The letter of Mr Greg McLandsborough of 16 June 2015

1. The letter of Mr Landsborough is very brief. It relevantly states: I, Greg McLandsborough, hereby state that the plans provided for the construction of the new residence to be located at . . .. Oberon, were compiled in accordance [with] and under the direction of the Owner. The subsequent As Built plans were provided to Owner as per instructions and directions. With regard to the Front verandah, the drawings clearly indicate that the verandah is [below] the main roof in plan as per our instructions. The verandah roof was re-designed to attach to the residence below the guttering of the main roof an [aesthetic] feature as per the owners instruction.
2. It can be seen that this short letter is in part a statement of fact summarising discussions between Mr McLandsborough and the Boltons ("the plans . . . were compiled in accordance and direction . . . of the Owner"; "the verandah roof was re-designed . . . as per the owners instruction") and in part expert opinion evidence ("the drawings clearly indicate is [below] the main roof in plan"). To the extent that Mr Williamson seeks to rely on any expert opinion evidence expressed in this letter, that evidence must be rejected, for the same reasons that we have given in relation to Mr Williamson's own "expert" evidence.
3. To the extent that the letter is relied on to support the assertion that Mr Williamson, in constructing the verandah, was simply relying on the instructions of the Boltons, we address this matter below, under Ground 5.

Conclusion

1. We conclude that the reasons for the Tribunal proceeding in the absence of Mr Williamson are persuasive. Moreover, even if we accept that Mr Williamson lost the opportunity to participate in the hearing due, in part, to a Registry error, we do not consider that the presence of Mr Williamson would have made any difference to the outcome. While a decision may be set aside if there is an error of law, the error must be material in the sense that it "might" or "may" have made a difference: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353 per Mason CJ and 384 per Toohey and Gaudron JJ; House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112 at 121.
2. In this case, directions had been made about the filing of evidence. Mr Sovik complied with the directions. Mr Williamson sought an extension. He submitted that he complied with the varied directions. If we assume, in Mr Williamson's favour, that the Tribunal would have accepted he had filed his letter of 8 June 2015 and would have allowed him to rely on the letter of Mr McLandsborough, this evidence was of limited assistance to his case. We refer to these matters below in dealing with Grounds 4 and 5.
3. Accordingly, this ground of appeal fails.

Ground 3: The Tribunal had "pre-judged" the application

1. Mr Williamson submitted that the Tribunal had "pre-judged" the matter, by reason of the short period of time between the hearing and the publication of the reasons for decision.
2. It was common ground that the matter had been listed for hearing at 9.30am on 18 June 2015. Mr Williamson submitted that he received notification of the order of the Tribunal and the reasons for decision by email at 9.58am that day. We note that the Tribunal file reflects that the orders were made at 9.57am. Mr Williamson submitted that, given the reasons for decision were some a little over three pages in length, the reasons must have been composed beforehand. In effect, he was submitting that the member constituting the Tribunal brought a pre-conceived or pre-determined attitude to the hearing.
3. We do not accept this submission. It is not unusual for Tribunal members to read the file prior to the hearing and to prepare summaries of the application and the evidence relied on. Given the contents of the reasons it is clear that the member did familiarise himself with the filed documents, including the expert report, and, in particular, the fact of the adjournment request. We see nothing irregular in the Tribunal member becoming aware of these matters or with the Tribunal preparing draft documents in advance to assist with the hearing. This ensures the efficient despatch of Tribunal business and does not mean the Tribunal member has pre-judged the matter. Mr Sovik stated that the Tribunal member asked him for his views on the request for an adjournment and also asked him questions about his case. Mr Sovik submitted that it was apparent to him the Tribunal member had read the expert report and his material. While there was no transcript or sound recording of the hearing provided by the parties, this is consistent with the written reasons which, although brief, set out the background to the dispute and refer to the key findings of the expert. If Mr Williamson had attended the hearing and made submissions or if he had filed evidence to support his case and these matters were not addressed in the reasons, Mr Williamson's complaint may have had substance. However, this is not the case. The only material before the Tribunal member was the evidence and submissions filed by Mr Sovik.
4. The nature of the submission alleging "pre-judgment" amounts to a submission that the member was biased, or did not give Mr Williamson a fair hearing. Such an irregularity is an error of law and leave to appeal from the decision is not required.
5. We do not accept that this ground of appeal is established. Accordingly, this ground of appeal fails.

Ground 4: The reasoning of the expert report was defective

1. As noted, the only expert evidence before the Tribunal was the report of Mr Percy. We note that the report is 52 pages in length, specifically refers to the obligations imposed by the NSW Civil and Administrative Tribunal Procedural Direction 3, Expert Witnesses, and sets out the author's qualifications and experience. In all aspects, it has been prepared in a proper form for the giving of expert opinion evidence.
2. Mr Percy's conclusion is stated on page 21 as follows: 8.1 The inspection of the premises . . . has identified the north east verandah roof and north west verandah roof has not been constructed in accordance with the Building Code and Standards, has not been constructed in accordance with the contract documents, and has not been constructed in a proper and tradesmanlike manner, 8.,2 In considering the costs for the proposed rectification, the issue of fairness and reasonableness was considered. 8.3 The rectification method involves demolishing the existing roof and reinstating in accordance with the contract documents, relevant codes and standards and to match the existing materials.
3. This conclusion follows a site inspection, on 20 April 2015, the taking of photographs, the taking of moisture readings and the observation of water penetration through the ceiling of the verandah. At pars [6.10] to [6.18] Mr Percy states: 6.9 The Lysaght Product Guide 2011-2012 recommends a minimum roof pitch of 5 degrees for custom orb (corrugated) profile. I have provided below an extract of the relevant section of the Lysaght Manual. [omitted] 6.10 The Architectural Plans, in particular Section A, Drawing No. Ar-AP-002, identifies the roof pitch was designed to be constructed at 5 degrees. 6.11 The inspection further identified that the junction of the main roof and the verandah have not been constructed in accordance with the plans. The main roof has been constructed with eaves and fascia & gutter. The verandah roof is then constructed under the gutter creating a step down. 6.12 The plans do not detail eaves and step down between the main roof and verandah but show a connection aligned with the main house as shown in Section A below. 6.13 It is considered likely that this is the reasons why the roof has not achieved 5 degrees as detailed in the contract plans. By lowering the connection point between the main dwelling and verandah roof, the pitch of the roof is subsequently flattened. 6.14 While on the roof, I observed the gutters were holding a substantial amount [of] water . . . 6.15 I measured the fall of the gutter along the east edge of the verandah roof to be 0.6 degrees. 6.16 I then measured the fall along the gutter to the main house in 3 locations above the north east verandah being the southern end of the verandah, the midpoint (approximately) and the west end of the verandah. 6.17 I found the fall to be 0.4 degrees, 0.3 degrees and 0.0 degrees respectively. 6.18 I measured the fall of the gutters to the main house above the north west verandah in 2 locations and found the fall to be 0 degrees and 0.6 degrees.
4. Mr Percy noted (at [6.22] - [6.23]) that clauses 2 and 3 of the contract provided that all work done under the contract was to comply with all relevant building codes and Australian Standards. He referred to the National Construction Code 2011 and in particular noted Part 3.5.1 in relation to roof cladding which provides at cl 3.5.1.3(a) that "the design and installation of metal sheet roofing must comply with the relevant provisions of this Part." Relevantly, Table 3.5.1.5 which was extracted by Mr Percy in his report, specifies the minimum pitch for a corrugated roof as 5 degrees.
5. Based on these observations, Mr Percy concludes at par [6.28] that Mr Williamson did not construct the roof so as to prevent the ingress of moisture or construct the work, in a proper and workmanlike manner, in accordance with the contract documents, the manufacturer's recommendations or the National Construction Code.
6. In part 7 of his report (at [7.1] to [7.9]) Mr Percy details the rectification methodology recommended and the costs of the rectification. He refers to a quotation obtained by a roofing contractor for rectification at a cost of $9,702 (excluding scaffolding and handrail at $3,000) but discounts this methodology because it would require a different roof material from the rest of the house and would not be in accordance with the contract.
7. Mr Williamson asserts, as noted above, that the expert report of Mr Percy fails to take into account the catchment capacity of the guttering or the "insufficient" downpipes, both of which issues he says contributed to the leaking roof. He also submits that Mr Percy referred to the draft plans and not the final "as built" plans as agreed and instructed by the Boltons and should have considered the installation of spreaders as a cheaper option for rectification, being his recommendation to Mrs Bolton when she complained about the leaking verandah, which she had rejected.
8. In the absence of any other independent expert evidence we do not consider that this submission is well-founded.
9. The submission is flawed in any event because it fails to address the critical finding by Mr Percy that Mr Williamson had the responsibility to construct the verandah so that it would not leak. Even if it is accepted that that the plans relied on by Mr Percy were not the final plans, Mr Williamson does not dispute that the verandah leaks or that construction of the verandah roof as a step down from the eaves and gutters flattened the roof, resulting in a reduction in the pitch. This contributed to the water ingress.
10. Mr Williamson responds to the issue about the flattened pitch of the verandah roof with two arguments. First, he contends that he constructed the verandah in accordance with the Boltons' instructions. This issue is considered further in relation to Ground 5. Secondly, Mr Williamson contends Mr Percy should have considered more economical rectification, for instance through spreaders. Mr Percy took into account the aesthetics of the building in assessing whether the rectification methodology recommended by him was reasonable. Mr Williamson does not address this issue.
11. Accordingly, this ground of appeal fails.

Ground 5: Mr Williamson constructed the verandah in accordance with the specific directions of the original owners, Mr and Mrs Bolton.

1. In his oral submissions Mr Williamson submitted that he had constructed the verandah in accordance with the original owners' instructions. This seems to be common ground. However, Mr Sovik submits, correctly, that this does not excuse Mr Williamson from his obligations arising under the HBA, in particular the statutory warranties. Section 18F(1)(a) of the HBA provides that in proceedings for a breach of a statutory warranty, it is a defence for the defendant to prove that the deficiencies of which the plaintiff complains arise from instructions given by the person for whom the work was contracted to be done contrary to the advice of the defendant or person who did the work, being advice given in writing before the work was done.
2. We asked Mr Williamson about this. He told us that he had many conversations about the work with Mr and Mrs Bolton, but conceded that he never gave them any advice in writing as to the suitability of their plans or instructions, and stated that he had followed their instructions.
3. As noted, the only expert evidence before the Tribunal was the expert report of Mr Percy. It is clear from that report that Mr Williamson did not construct the roof so as to prevent the ingress of moisture, or undertake the work in a proper and workmanlike manner or in accordance with the National Construction Code.
4. This ground of appeal also fails.

Conclusion

1. In summary, we understand Mr Williamson to be raising two errors of law. The first is that that he was denied the opportunity to present his case given the hearing proceeded in his absence. The second is that the Tribunal "pre-judged" his application. Each of these matters does not require the leave of the Appeal Panel to prosecute these grounds.
2. For the reasons given above, these grounds of appeal should be dismissed.
3. In addition to the errors of law, Mr Williamson raises two other issues which he requires leave to prosecute. The first is that the reasoning of the expert report relied on by Mr Sovik was defective. The second is that Mr Williamson constructed the verandah in accordance with the specific directions of the previous owners.
4. We have set out above the principles stated in Collins v Urban. For leave to appeal to be granted, an appellant 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. Ordinarily it is appropriate to grant leave to appeal only in matters that involve issues of principle, questions of public importance or matters of administration or policy which might have general application, an injustice which is reasonably clear, a factual error that was unreasonably arrived at and clearly mistaken; or that the Tribunal went about its fact finding process in such an unorthodox manner that it produced an unfair result.
5. We are not satisfied that Mr Williamson has established any of these matters. For the reasons given above, we would not grant leave to appeal on any of these grounds, and otherwise dismiss the appeal.
6. As to the final ground of appeal, namely the conduct of NSW Fair Trading, Mr Williamson has not articulated any persuasive reason why the Department's conduct taints the reasons of the Tribunal. That ground of appeal also fails.

Orders

1. The Appeal Panel orders that: 1. In relation to the errors of law articulated by the appellant, the appeal is dismissed 2. In relation to any other alleged error, leave to appeal is refused, and the appeal is otherwise dismissed. 3. The stay of the order of the Tribunal of 18 June 2015 is lifted. 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: 09 September 2015