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Augustus v Mohammed [2016] NSWCATAP 108 (18 May 2016)

Last Updated: 18 May 2016



Civil and Administrative Tribunal
New South Wales

Case Name:
Augustus v Mohammed
Medium Neutral Citation:
Hearing Date(s):
3 March 2016
Date of Orders:
18 May 2016
Decision Date:
18 May 2016
Jurisdiction:
Appeal Panel
Before:
P Callaghan SC, Principal Member
S Thode, Senior Member
Decision:
(1) The time for instituting this appeal is extended to 6 November 2015.
(2) Subject to order 4, the Appeal and the Application for Leave to Appeal are dismissed.
(3) The order appealed from is affirmed.
(4) The subject proceedings are remitted to the Consumer and Commercial Division of this Tribunal (as previously constituted, if practicable) for consideration (on the evidence tendered at the hearing on 17 August 2015) of any order that may be appropriate to be made in respect of the first respondent in the subject proceedings, Ausko Building & Construction Pty Ltd.
(5) The Registrar is to arrange for a copy of this decision to be forwarded to Ausko Building & Construction Pty Ltd at its registered office promptly after publication of this decision with a covering letter drawing attention particularly to Order 4 above.
(6) If the Respondents wish to make an application for their costs of this appeal, they are to do so by filing, and serving on the Appellants, written submissions within 14 days after the publication of this decision and the Appellants may file, and serve on the Respondents, submissions in reply within 14 days after service on them of the Respondents’ submissions. Any such application will then be decided on the papers.
(7) The application for a stay (and other order) is dismissed.
Catchwords:
APPEAL – NCAT internal appeal – appeal dismissed – application for leave to appeal dismissed – extension of time for institution of appeal – identification of questions of law – issue not raised at hearing

PROCEDURAL FAIRNESS – case management – bias

HOME BUILDING ACT – s3A – s48MA

LEAVE TO APPEAL – fairness – new evidence – weight of evidence

EVIDENCE – expert evidence – costs of expert’s report

PROCEDURE – no order made in appealed decision in respect of one respondent – stay - costs
Legislation Cited:
Cases Cited:
Ayoub v CPT Corporation Pty Ltd  [2015] NSWCATAP 239 
Collins v Urban [2014] NSWCATAP 17
Drivas v Burrows [2014] NSWCATAP 87
Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303
Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378
Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Mamo v Surace [1986] NSWLR 257
Nelmeer Ashfield Pty Ltd v Farah [2015] NSWCATAP 276
Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69
Texts Cited:
Nil
Category:
Principal judgment
Parties:
Appellants: Viji Augustus, Sylvia Shanthi Augustus, Roshan Iyadurai, Rebecca Roshan, Stanley James and Aravinda Stanley

Respondents: Abdul Kaheel Mohammed and Shahim Mothi Sheikh
Representation:
Appellants: in person through Stanley James

Respondents: J. Antoun, Solicitor, of Uther Webster & Evans
File Number(s):
AP 15/60640
Decision under appeal:

Court or Tribunal:
Civil and Administrative Tribunal
Jurisdiction:
Consumer and Commercial Division
Date of Decision:
22 September 2015
Before:
J.A. Ringrose, General Member
File Number(s):
HB 14/61603

REASONS FOR DECISION

Background

  1. On 13 October 2012 the respondents to this appeal (principally referred to herein as “the purchasers”) entered into a contract with the appellants to purchase a townhouse type dwelling (“the property”) which was to be built at Girraween as one of four such adjacent properties to be developed by the appellants, using Ausko Building and Construction Pty Ltd (“the builder”) as builder. The contract price for the property (with upgrades) was $521,000.00. The purchase was settled on 17 February 2014.
  2. The purchasers notified a building dispute in respect of the subject property to Fair Trading NSW in July 2014. After investigations by that Office and some rectification work on the property, the purchasers on 29 December 2014 instituted proceedings against the builder and the appellants in the Consumer and Commercial Division of this Tribunal against the builder as first respondent and the appellants in pairs as the second, third and fourth respondents seeking a work order, at a claimed total cost of $71,282.74 (“the subject proceedings”).

Subject Proceedings-Interlocutory

  1. There was a first directions hearing in the subject proceedings on 10 February 2015 at which all parties appeared with Ms Sheikh representing the purchasers, Mr Michael Lee, a director of the builder representing the builder, and Messrs Augustus and James representing the appellants. A short adjournment was given to the parties so that they could discuss rectification work to the property. Directions were then made and later confirmed in writing to the parties in the following terms:
  2. During the directions hearing the Member recommended that there be a meeting of experts. Ms Sheikh requested a copy of the contract between the builder and the appellants.
  3. A second directions hearing took place on 7 April 2015. There was no appearance on behalf of the builder but the purchasers appeared themselves and Messrs Augustus and Iyadurai attended to represent the appellants. The Tribunal was informed that rectification work on the property was to be done by 18 June 2015 and the proceedings were stood over for further directions on 30 June 2015.
  4. On 30 June 2015, again there was no appearance on behalf of the builder and the other parties appeared, the purchasers themselves and Messrs Augustus and Iyadurai on behalf of the appellants. Ms Sheikh said rectification work was still being done and Mr Augustus said there were some copyright problems in relation to release of approved construction drawings which the purchasers wanted. The Member expressed concern about non-compliance with the Tribunal’s previous directions. The Member said: “I’m going to set the matter down for hearing because this cannot go on drifting along like this.” Ms Sheikh advised that no work had commenced until 14 or 15 June 2015 and Mr Augustus spoke of completion within four weeks thence as a maximum. The Member granted an adjournment for four weeks for work to be completed and said “Because if it’s not finished the matter will be set down for a priority hearing.” Directions were made as follows:
Note: Any documents must be provided in a folder(s) marked Main Bundle (rather than attached to statements or reports) which shall have an index and each page shall be numbered consecutively. Documents should be organised in sale order, earliest to latest.
All documents referred to by any witness shall be included in the bundle and identified in the witness statement or expert report by bundle page number. No duplicate documents.
Failure to comply with these requirements for the preparation of the bundle may result in the Tribunal making orders preventing a party from relying on any evidence not provided in accordance with these requirements.
(viii) On or before 28 July 2015 the respondents are to file and serve all witnesses statements, expert reports and other documents upon which the respondent intends to rely.
Note: Any additional documents (not already in the Main Bundle provided by the applicant) will be provided by the respondents in a folder(s) marked Supplementary Bundle (rather than attached to statements or reports) which shall have an index and each page shall be numbered consecutively. Documents should be organised in date order, earliest to latest.
All documents referred to by any witness shall be included in the Supplementary Bundle (unless already in the main Bundle) and identified in the witness statement or expert report by bundle page number. No duplicate documents should be in the bundle.
If there is more than one respondent, the respondents must meet and prepare a joint Supplementary Bundle with no duplicate documents.
Failure to comply with these requirements for the preparation of the bundle may result in the Tribunal making orders preventing a party from relying on any evidence not provided in accordance with these requirements.
General Note: Subject to these directions, the parties must comply with the Chairperson’s Direction in relation to the provision of expert evidence, including in relation to the Expert Code of Conduct, detail of which can be found on the Tribunal website.
(ix) The Tribunal notes that the applicants have filed with their application a bundle of documents on which they rely as having complied with the directions made by this Tribunal made on 10 February 2015. If the applicants rely on any of those documents they must be prepared in accordance with the directions made 10 February 2015 and these directions.
(x) The Tribunal notes that the respondent, Ausko Building & Construction Pty Limited, did not appear before the Tribunal on 7 April 2015 or 30 June 2015. If Ausko Building & Construction Pty Limited does not comply with the directions of this Tribunal or appear it will not have an opportunity to be heard in defence of the claim and may have orders made against it in its absence.
(xi) If a party requires an extension of time to comply with these directions, an application should be made in writing to the Registrar no later than the day prior to the date of submissions of documents to the Tribunal.
(xii) A failure by a party to provide documents in accordance with the Tribunal orders may result in the party not being able to rely on the documents at the hearing, unless leave is granted to do so.
(xiii) All evidence from a party’s witness(es) in support of that party(ies) must be in the form of a statement, statutory declaration, affidavit or expert report as appropriate.
(xiv) Direction 3 of the Tribunal made on 10 February 2015 is vacated and in its place make Direction 8 of these Directions.
(xv) In any of the orders made today, the applicants are to serve both Ausko Building & Construction Pty Limited and Roshan Paul Ravikumar Iyadurai and Rebecca Vinodhini Roshan and Viji Augustus and Sylvia Shanti Augustus and Stanley Pandian James and Aravinda Stanley.
(xvi) The Tribunal directs the Registrar to serve notices on the respondent Ausko Building & Construction Pty Limited at its registered office, xxxx, Pendle Hill NSW 2145 and not at its Post Office Box Number.

The notices to the parties of these directions concluded with advice that a separate written notice of the new hearing date will be sent to them in the near future.

  1. A notice listing the hearing of the proceedings for 17 August 2015, dated 2 July 2015, was forwarded by the Registry to all the parties. The substantive parts of the notice were in the following terms:
The application has been listed before the Tribunal and you are required to appear at:
Location: NSW Civil and Administrative Tribunal
Government Office Building
Ground Floor, 2-6 Station Street
cnr Belmore & Station Streets
PENRITH NSW 2750
Date and Time: Monday 17th August 2015 at 9.15 AM (AEST)
Please arrive at least 15 minutes before the start of the hearing.
It is important that you are on time as the Tribunal may decide the matter in your absence.
The decision made will be binding on you.
  1. On 17 July 2015 by email to the Tribunal the purchasers sought an extension of time for lodgement of their material by 2 days, from 21 July 2015 to 23 July 2015. Their stated reason was to the effect that the expert’s report needed to be amended to take account of some repair work which had been carried out.
  2. By a faxed letter dated 27 July 2015 the appellants requested an extension of time to 25 August 2015 to comply with the direction that their material for the hearing be filed and served by 28 July 2015. Their stated grounds for the application were that the purchasers’ material had not been received until 24 July 2015 and that the purchasers’ claims in the subject proceedings were “undermining a prior ‘good faith’ agreement between the parties to finalise the matter.” That application was promptly opposed by the purchasers in writing with complaints by them that, among other things, the builder’s licence had expired on 21 July 2015, progress by the appellants in relation to rectification work had been negligible and the appellants were not honouring their commitments to complete it. The Tribunal refused the appellants’ request. A letter dated 4 August 2015 to the respondents notified them of that refusal and concluded as follows:
You should comply with procedural directions as soon as possible. Issues of non-compliance with procedural directions may be raised with the Tribunal at the hearing.
The hearing date is confirmed.

Subject Proceedings-Hearing

  1. The hearing on 17 August 2015 took place (as had the directions hearings) at Penrith. Appearing were both purchasers, Mr Lee on behalf of the builder and Messrs Augustus and Iyadurai on behalf of the appellants. In the early stages of the hearing, among other things:
  2. Ms Sheikh gave evidence, answering questions from the Member. She was questioned by Mr Augustus on behalf of the appellants. The purchasers’ expert gave evidence in response to questions from the Member and with reference to his report and Scott Schedule. He was questioned by Mr Iyadurai.
  3. The Member then engaged in discussions with Messrs Augustus and Iyadurai. He admitted into evidence communications to the Tribunal from them including their response to the Scott Schedule and a plan which had apparently been used for the development application concerning the property. That discussion continued over several pages of transcript and towards its conclusion the Member addressed these remarks to them:
“The problem is now, one, the hearing is today – and I’ll let you speak after I’ve finished: I just want to explain this to you. One, you have no expert report and the hearing is today. Two, there is no agreement that can be reached to sort of offset a claim for faulty building works unless that agreement is reached and usually reached for consideration. In other words, someone says, ‘well, okay, well, if we pay you so much, will you forego these defects and only on those.’
Three, the obligation on a developer is – well, it’s an obligation on a developer. A purchaser from a developer has the same rights against the developer as an owner would have against a builder under the Home Building Act and, as I say, if it was your house and your builder and you had a list of claims, you would have a right to pursue all of those claims against the builder and, because of the Act, the purchaser from you has those rights. Now, it’s not an answer to this claim now to say ‘We want to fix it. We’re going to fix it’, because the first problem you’ve got is the builder is now not licensed. So the Tribunal cannot make any order that the builder fix it.
You as developers are not licensed to carry out building work so the Tribunal cannot make any order that you do the work because, again, that’s illegal for the Tribunal to make such an order. So the only order available now where the builder is unlicensed and the developers are unlicensed and where parties haven’t reached agreement is for me to make an order about how much you have to pay for these works to be done, and the difficulty I have – well, not the difficulty I have, the difficulty for you, I guess, is that there is no Scott Schedule prepared by an expert. There is no alternate costing and there is no basis upon which, apart from if there was some obvious thing that came out of questions you asked, I can say ‘Well, I should disallow this or disallow that.’
So I just want to say those things to you so that I’ll now give you a chance to say whatever it is you want to say to me about the whole thing, but I just wanted you to get it into perspective. So now is your chance to say anything more you want to say.’”
  1. Ms Sheikh spoke to the Member concerning the fees paid to the purchasers’ expert and the Member involved Mr Iyadurai in that discussion. The Member also made some comments to him to the effect that he had heard nothing from the appellants concerning apportionment between the appellants and the builder and he concluded those comments by saying:
“...I’m not being asked to apportion it between you. I’ve got no evidence on which I can apportion it, but that might be something between you and the builder you’ll have to work out later. All right?”
  1. The Member then posed these questions which brought no response from any of those present:
“All right. Nothing more from anybody? All done? Finished?”

The Member’s decision was thereupon reserved.

Appealed Decision

  1. A reserved decision was published, with reasons, on 22 September 2015 (“the appealed decision”). The appellants were ordered to pay to the purchasers within one month $55,951.40 for rectification costs plus goods and services tax and $7,480.00 for expert report costs. No order was made against, or concerning, the builder.

Appeal

  1. A Notice of Appeal was filed by the appellant on 6 November 2015. It sought in place of the orders in the Appealed Decision orders that the subject proceedings be dismissed and that the “Respondents to complete the rectification of works agreed between the applicant and respondent according to section 48MA of the Home Building Act.” It also sought leave to appeal and an extension of the time for instituting the appeal.
  2. The Notice of Appeal specified the grounds of appeal thus:
Significant procedural errors
1. We were not given an opportunity to request for hearing adjournment so that we can present all our evidence in our defence in a more formal manner.
2. We were not given an opportunity to complete the works in spite of having an agreement on which the works were progressing and one of the respondents having a building licence. We also note that Section 48MA of Home Building Act states that “Rectification of defective work is preferred outcome in proceedings – a court of 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. In this case the respondent was willing to and agreed with the applicant to complete the rectification work. The original Decision maker did not consider this section of HBA in coming to this decision.
New Evidence
Significant new evidence such as Building Expert report and witness statements as to applicant’s refusal to provide access to the property to complete the rectification works was not available at the time of the original hearing. The respondent’s request for extension of time to provide the expert report was refused by the Tribunal.
Decision was not fair and equitable
1. The applicant and the respondents (Stanley and Viji) reached a verbal agreement in early April subsequent to the hearing at the Applicant’s residence to complete the 20 items of work as a settlement to the claim made by the applicant. Email correspondence between the respondent and applicant in support of the verbal agreement was provided which was not accepted by the decision maker. Further to this the applicant herself had accepted in the earlier hearing that the works were in progress and that she wanted them to be completed prior to her festival. This can be verified by the Tribunal’s records of the audio hearing of the hearing.
2. We were not given a fair go, as the member failed to explain the format of the proceeding and the member used our inexperience to intimidate us thereby preventing us from presenting our arguments coherently and objectively without fear.
3. The order has been made on an expert report that has not based its assessment of defects on established scientific methodologies but rather based on applicants statements and the experts own biases. For example the report states that there is inadequate slope in the toilet floor but fails to demonstrate how this was determined.
4. Michael/the builder (Ausko Building Constructions Pty Ltd) being one of the respondents was not included in the final Tribunal order which is incorrect. Importantly, no reason has been given for omitting Ausko Building Constructions Pty Ltd from the order.
  1. The Notice of Appeal specified that in respect of the application for leave to appeal, that the decision was not fair and equitable, that the appealed decision was against the weight of evidence and that significant new evidence was now available that was not reasonably available at the time of the hearing.
  2. In support of the allegation that the decision was not fair and equitable this statement was attached to the Notice of Appeal:
1. We were not given an opportunity to request for hearing adjournment so that we can present all our evidences in our defence in a more formal manner. Our request for extension of time was not granted (Ref 1). Our letter of request was sent to the applicants for consideration. However, the applicants’ response was never communicated to us. The respondents building expert report and the witness reports providing evidence of access refusal were not present when the original decision maker made this decision. We believe that Tribunal decision is wrong and unfair because the crucial evidence was missing when the decision was made. The new expert report and witness reports as to applicant’s refusal to provide access to complete the rectification works will shed more light on the matter and will help the decision maker to make a fair and evidence-based decision.
2. The respondents from the beginning are willing to complete the agreed items of works in a professional manner. An agreement was reached between the applicants and the respondents to complete 20 items as a settlement towards the claims. Subsequently these works were carried out except for one item for which the tradesperson was denied access by the applicant. The intent of the respondents was to complete all agreed work to the satisfaction of the applicant. The intent of the respondents was to complete all agreed works in accordance with relevant standards and codes. The intent of the respondents was to complete the works in accordance with the agreement and were completing the agreed works. In this regard it should be noted that one of the respondents has a building licence.
The original decision maker did not consider section 48MA of Home Building Act which says ‘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.’ In this case the respondent was willing to and agreed with applicant to complete the rectification works. The original Decision maker did not consider this section of HBA in coming to this decision.
3. The applicant and the respondents (Stanley and Viji) reached a verbal agreement in early April subsequent to the hearing at the Applicant’s residence to complete the 20 items of work as a settlement to the claim made by the applicant. Email correspondence between the respondent and applicant in support of the verbal agreement was provided which was not accepted by the decision maker. Further to this the applicant herself had accepted in the earlier hearing that the works were in progress and that she wanted them to be completed prior to her festival. This can be verified by the Tribunal’s records of the audio hearing of the hearing. In this regard the tribunal member directed the applicant to allow access to her property during normal working hours (check the recording of April hearing). In spite of this direction, the tradespersons were not given adequate access during normal working hours (statutory declaration to this effect will be provided in accordance with tribunal procedural requirements).
4. We were not given a fair go, as the member failed to explain the format of the proceeding and the member used our inexperience to intimidate us thereby preventing us from presenting our arguments coherently and objectively without fear.
5. The respondents were not given prior notice of the opportunity available to cross-examine the applicant and the applicant’s expert witness. Additionally the respondents were not given an opportunity to bring the required witnesses from their side.
6. Michael/the builder (Ausko Building Constructions) being one of the respondents was not included in the final Tribunal order which is incorrect. Importantly no reason is given or omitting Ausko Building Constructions Pty Ltd from the order.
  1. As to the allegation that significant new evidence was then available that was not reasonably available at the time of the hearing, the Notice of Appeal stated:
The Tribunal should have considered an extension of time to allow reasonable amount of time to prepare themselves and provide for an expert report. Further, the Tribunal never considered the agreement between the applicants and respondents to complete 20 items as a settlement to the applicant’s claims.
  1. The statement attached to the Notice of Appeal added in respect of this allegation:
We acted in good faith and were in the process of completing the agreed works as settlement for the claims made by the applicant. Moreover there was an implicit understanding between the applicant and the respondents to focus on having the works completed rather than expending on expert reports. In this regard the tribunal members at previous hearings indicated that the reports submitted to date by the applicant were not expert reports. The applicant acknowledged this and stated that progress has been made on agreed works (refer to recording of tribunal hearing). Furthermore, as there was no intent by both parties to involve third parties in these negotiations and agreement, and significant progress has been made on the agreed works, we did not envisage a scenario where the applicant and the expert would take advantage of the tribunals June determination by submitting a report and Scotts Schedule with an expanded original works list. In this regard we also note that the applicant’s expert report is not based on established scientific methodologies for assessing defects but rather based on applicants statements and the experts own biases.
Since we did not expect a defects list of this nature, we sought an extension of time and a postponement of the hearing to submit our expert report, which was denied with no reasons as stated earlier. In this regard it should be noted that all experts contacted indicated that to provide an expert report covering all the items claimed in the applicant’s report would take at least 3 weeks, whereas we only had a week from the receipt of the applicants expert report.
Thus in response to the applicant’s report and Scotts Schedule, the respondents provided a response against each listed item in the report. Our responses reflected our agreement, works that have been completed, our professional judgment, the current functionality and performance of the item considered as defective and our past experience. We note that the determining member did not give due regard to our responses as they were not in the requested format and were not prepared by an ‘expert’.
  1. The Notice of Appeal identified the new evidence that the appellants now seek to produce to the Tribunal as:
An expert building report;
Witness statements as to applicant’s refusal to provide access;
Bring the witnesses to the Tribunal.
  1. It gave this explanation of why this evidence was not available at the time of the hearing:
Respondent did not file the expert report when it was due because at the time as the respondent was engaged in settlement negotiations with the applicants and also were carrying the works that were agreed to in the settlement negotiations. The applicants themselves have state that they are very happy with progress of works in the April Tribunal hearing and they wanted the respondents to complete 20 remaining items before Eid festival.
The applicants confirmed on several instances they intend to withdraw the case at the hearing. As the respondents anticipated the applicant’s withdrawal of application based on the rectification works being carried out, the respondent did not think it was necessary to obtain expert report at the time.
However the applicant did not withdraw the proceedings contrary to the applicant’s agreement with the respondent. Whilst the respondent attempted to get an extension to file the evidence, leave was not granted by tribunal. Therefore Tribunal did not consider evidence of significant relevance in coming to this decision.
  1. The appellants indicated in the Notice of Appeal that in respect of their application for an extension of time, in addition to the material detailed above, they relied on this situation:
Legal advice was sought for with respect of appeal. The advice was received later than 28 days after the limitation day lapsed.

Appeal Hearing

  1. At the appeal hearing Messrs Augustus, Iyadurai and James were in attendance and Mr James acted as the spokesman for them and the other appellants. Mr J. Antoun, Solicitor, appeared for the respondents and the respondent, Ms Sheikh, was in attendance with him. Prior to the hearing each party had lodged written submissions and other material with the Tribunal. The respondents’ written submissions which Mr Antoun had prepared were extensive and had been served on the appellants only a few days before the hearing of the appeal; we permitted the respondents to file and serve a response to the respondents’ submissions and they did so on or about 15 March 2016. Included in the material with the parties’ submissions were transcripts of the directions hearings and the final hearing in the subject proceedings. The appellants also lodged a form of Application for stay of original decision pending appeal bearing date 7 February 2016 but, apparently, this was received at the Tribunal’s Penrith registry only on 11 March 2016 and was referred to the Appeal Panel after the hearing of the appeal; that application sought orders in the following terms:
We are seeking stay for the payment of $55,951.40 and $7,480.00 that was made by NCAT dated 22 September 2015. In addition to this we also seek from the respondents Abdul Kaheel Mohammed and Shahim Mothi Shekih against carrying out any work for which the above monetary amount of $55,941.40 was made in the decision dated 22 September 2015.

The following details were given for reasons for the stay application:

We have lodged an appeal no; AP15/60640 against NCAT decision dated 22 September 2015. Please note that the appeal is in progress. If above requested stays are not granted, the appeals lodged by us will be useless as the orders are in force before the appeal is finished; through their solicitors, the respondents objected to that application by the appellants being dealt with on the papers and made submissions by way of letter, endorsed as having been copied to the appellants, in opposition to the application.

Issues and Consideration

Extension of Time for Appeal

  1. The Civil and Administrative Rules 2014 relevantly provide in r 25 that an internal appeal such as this must be lodged within 28 days from the date the appellant was notified of the decision. Section 41 of the NCAT Act permits the Tribunal to extend that time and the appellants have sought such an extension. The appellants were approximately fourteen days late in instituting this appeal. They rely on their having obtained legal assistance in respect of the appeal, which assistance was, they say, later than the lapse of the 28 day period. The purchasers oppose the granting of such an extension.
  2. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 an Appeal Panel at [22] reviewed a number of cases and said (among other things):
Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
a. The length of the delay;
b. The reason for the delay;
c. The appellant’s prospect of success, that is whether the applicant has a fairly arguable case; and
d. The extent of any prejudice by the respondent (to the appeal).
  1. Here, the length of the delay is significant but not extreme. The appellants’ explanation relates to late legal advice but it suffers from a lack of detail. As circumstances have transpired, we are not dealing with the application on an interlocutory basis as we have heard the appeal, and any separate assessment of the appellants’ prospects of success is not really appropriate. As to prejudice to the respondents, we have been informed through the appeal hearing that the respondents have obtained a Local Court judgment in respect of the order in the appealed decision and may have recovered by way of garnishee order some of the subject sum. Weighing up all these circumstances we have concluded that it is appropriate to extend the time for the appeal.

Questions of Law and Other Grounds

  1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (“the NCAT Act”) relevantly provides that an appeal may be made to an Appeal Panel against a decision such as the appealed decision as of right on any question of law, or with leave of the Appeal Panel on any other grounds.
  2. As was pointed out in Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22] it is “necessary for the notice of appeal to identify precisely the particular questions of law.” Here, the Notice of Appeal does not clearly distinguish in the formulation of the matters relied on between asserted questions of law and other grounds and presents those matters in a somewhat discursive and repetitive style. We appreciate, however, the guidance given in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69:
In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent.
  1. We also add the helpful, but not exhaustive, list of potential questions of law given in the Prendergast decision at [12].
  2. Clause 12(1) of Schedule 4 of the NCAT Act provides that an application for leave to appeal from a decision of the Consumer and Commercial Division of this Tribunal may be granted:
...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).
  1. In relation to that clause, in Collins v Urban [2014] NSWCATAP 17 at [80] an Appeal Panel of this Tribunal, by way of summary of relevant general principles, after a review of a number of cases, said that:
“Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstance referred to in cl 12(1)(a), (b) or (c) where there is a “significant possibility” or “a chance which was fairly open” that a different or more favourable result would have been achieved for the appellant had the circumstance referred to in para (a) or (b) not occurred or if the fresh evidence at para (c) had been before the Tribunal as first instance.”

And similarly at [84] the Appeal Panel said that:

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 ...
Ordinarily it is appropriate to grant leave to appeal only in matters that involve:
issues of principle;
questions of public importance or matters or administration or policy which might have general application; or
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;
a factual error that was unreasonably arrived at and clearly mistaken; or
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 ...
  1. We propose working through, in turn, the various matters relied on by the appellants in their Notice of Appeal and submissions, however they are presented, whether as questions of law, as relating to leave to appeal, or otherwise.

Lack of Procedural Fairness

  1. The appellants allege various matters that could constitute a denial to them of procedural fairness. An allegation of failure to afford procedural fairness would constitute a question of law (Prendergast at [12], Ayoub v CPT Corp Pty Ltd  [2015] NSWCATAP 239  at  [19] ) and may ground a case that the decision was not fair and equitable. These allegations principally include the following passages in the Notice of Appeal:
  2. The appellants’ submissions repeat those allegations and develop some of them by further allegations such as that:
  3. The background against which those allegations should be considered involves matters of fact and law.
  4. Dominant relevant matters of fact we assess to be:
  5. Issues of law may arise here concerning the principle of case management. The High Court of Australia addressed that principle in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 at [51]:
In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice.
  1. Section 36 of the NCAT Act bears on case management, particularly:
(1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.
  1. Section 38 also relevantly provides
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
...
(4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(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.
  1. Some of the appellants’ complaints, however, go further than those to which case management may relate, with allegations such as those in the Notice of Appeal that they were not “given a fair go” and “the member used our inexperience to intimidate us...”. Those and additional complaints submitted by the appellants and noted in [37] above amount to allegations of bias, certainly perceived bias and probably even actual bias, on the part of the Tribunal. These are serious allegations and as such would need correspondingly cogent evidence to sustain them. To make out even perceived bias it would have to be established that in all the circumstances “...a fair-minded lay observer might reasonably apprehend that the (Tribunal) might not bring an impartial mind to the resolution of the question the (Tribunal) is required to decide”. (Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 at [6]).
  2. In the circumstances of these proceedings which have outlined at [4] to [15] of this decision above in respect of the interlocutory stages and the hearing on 17 August 2015, we see the Tribunal as having given the appellants adequate opportunities to participate in the hearing by questioning the purchasers’ witnesses, by the production of their own evidence, and otherwise; we also see the appellants as having failed to make proper use of those opportunities, particularly by failing to produce their own evidence.
  3. The Member’s decision to proceed with the hearing on 17 August 2015 was, in our opinion, appropriate. We see no justification for any of the appellants’ additional allegations noted in [37] above; and we will comment further on the licence situation below. We are of the firm view that in these respects about which the appellants complain, there was no denial of procedural fairness and that the subject decision was fair and equitable; the appellants did not thereby suffer a substantial miscarriage of justice. We certainly see no acceptable basis for the claims by the appellant of bias in the Tribunal; at the hearing the appellants were treated firmly but fairly by the Member and the Member spoke to them by way of explanation and guidance, not intimidation.

Section 48MA Home Building Act

  1. The appellants complain, in conjunction with allegations that they were not given an opportunity to complete rectification work on the property, that the Tribunal did not consider s48MA of the Home Building Act 1989 (“the HBA”). That section relevantly provides that in determining a building claim involving an allegation of defective residential building work by a party to the proceedings (“the responsible party”) the Tribunal is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome. The section was inserted in the HBA by the Home Building Amendment Act 2014 (“the amending Act”) and came into operation on 15 January 2015. Clause 121(2)(a) of Schedule 4 of the HBA provides that an amendment made by the amending Act does not apply to or in respect of proceedings commenced in a court or tribunal before the commencement of the amendment (whether or not the proceedings were finally determined before that commencement). The subject proceedings were commenced on 29 December 2014. Section 48MA was not raised as an issue in the subject proceedings and it did not apply to the subject proceedings in any event.
  2. We add that matters bearing on these complaints by the appellant concerning the principle covered by s48MA of the HBA, were taken into account in the subject proceedings:

New Evidence

  1. It is convenient to turn to the issue of new evidence before dealing with the issue concerning weight of evidence. As we have noted at [23] above, the Notice of Appeal identified the new evidence that the appellants now seek to produce to the Tribunal as:
An expert building report.
Witness statements as to the applicant’s refusal to provide access.
Bring witnesses to the Tribunal.
  1. The appellants included various items of an evidentiary nature in the material lodged by them for the appeal hearing. Those items do not include an expert’s report and it appears that the appellants have not obtained one. Included among the items are:
We both appellants went to the respondent’s house in the month April 2015 around 8 pm at the agreed time and initiated a dialogue with a view to reach a settlement. After 2 hours of deliberations, we reached an agreement to undertake about 10 major items as a settlement of the total of around 64 items. The respondents told us to type the agreement and bring it next day for their signatures. The respondents next day said they have changed their mind and would want to add another 10 items. We agreed to their request. When we went with the agreement the respondents evaded signing and asked us to bring it again later. They did not sign the agreement and at the same time made us to complete 19/20 of the agreed works.
(c) A statutory declaration (dated 6 February 2016) by a tiling and waterproofing contractor who says he was engaged by the builder to do waterproofing on the property in March 2013 and sent an employee to do repair works on the property in May 2015. He says, in effect, that repairs could not be carried because of difficulties (which he detailed to an extent) his employee told him he had in getting access to the property.
  1. No explanation is proffered by the appellants in this appeal as to why this new evidence was not available at the time of the hearing. The contractor’s licence of Blessed Sydney Contracting Pty Ltd was not referred to by the appellants at the hearing (as we will detail below). The allegations concerning an agreement as to work to be done on the property for the appellants and as to difficulties of access to the property for the purpose of such work, were made at the hearing, and dealt with in the appealed decision at [15] thereof:
Ms Shahin Sheikh gave evidence on behalf of the applicant and was available for cross-examination by the respondents. It was suggested that there were problems with the applicants refusing to provide access to the property but this was disputed by the applicants. In cross-examination on behalf of the respondents, it was suggested that there was an agreement to rectify only 20 items and that the developers were to be released from further liability on completion of those items. This assertion was disputed by Ms Sheikh on behalf of the applicants.

While the Member did not go on to make explicit findings concerning the matters that he was there referring to, it is clear enough that he did not accept the appellants’ (the then respondents) contentions concerning them.

  1. In the particulars in the Notice of Appeal concerning the claim that the decision was not fair and equitable, the appellants state that “the new expert report and witness reports as to applicants’ refusal to provide access to complete the rectification works will shed more light on the matter and will help the decision maker to make a fair and evidence-based decision”. What the appellants have put up at the hearing of the appeal does not persuade us of that.
  2. The appellants have not in our opinion made out any case that they may have suffered a substantial miscarriage of justice because significant new evidence is now available that was not reasonably available at the time of the hearing.

Weight of Evidence

  1. Our scrutiny of the Notice of Appeal and the appellants’ submissions leads us to discern that complaints by the appellants that the appealed decision was against the weight of evidence centre on the following matters:
  2. The appealed decision at [15] thereof dealt with the rectification arrangement, as we have quoted at [50] of this decision above. At the hearing of the subject proceedings at transcript p.30 Ms Sheikh, during questioning by Mr Iyadurai (assisted by the Member) concerning the rectification arrangement, said “...it was a part of negotiations which were initiated but it’s never come to an agreement...”. At transcript p.22 in response to questions from the Member she gave evidence that access was given for the purposes of rectification work except on one occasion when a tradesman arrived without notice when she was going out. There was no evidence to the contrary offered at the hearing by the appellants. In these circumstances we cannot accept that the way in which the Member dealt with the rectification arrangement and access, was against the weight of evidence.
  3. Associated with the rectification arrangement is a question relating to HBA licence authority for the appellants to do rectification work on the property. As we have pointed out in [50] above the contractor’s licence of Blessed Sydney Contracting Pty Ltd was not referred to at this hearing and we will now relate some details about that. At the hearing at p.7 of the transcript the Member spoke to Mr Iyadurai about the builder then being unlicensed and only a licensed builder being able to do rectification. Mr Iyadurai responded that they had tradespersons who were licensed during the work and the Member said that he had no evidence of that. Towards the end of the hearing, as we have quoted in [11] of this decision above, the Member included in comments to Mr Iyadurai:
So the only order available now where the builder is unlicensed and the developers are unlicensed and where the parties haven’t reached agreement is for me to make an order about how much you pay for these works to be done...”.

Neither on those occasions, nor on any occasion during the hearing, did the appellants make any reference to this licence or how the appellants had used, or could use, that in relation to rectification work on the property.

  1. In their submissions the appellants assert that the report of the purchasers’ expert was not independent and professional. The report was by a building consultant who listed his qualifications as including his being a clerk of works, licenced as a master builder and building consultant and accredited as a consultant with the Master Builders Association and with the Institute of Building consultants. His curriculum vitae was attached which detailed his continuous career in the building construction industry to date, commencing in 1972 with a carpentry and joinery trade course. He was retained by the purchasers, he said in his report:
“...to carry out an inspection of the incomplete and unsatisfactory works on the property and furnish a report. The report is to comment on any defects that exist, unfinished works and provide remedy to rectify any claimed defect.”
  1. The report records that inspections were carried out by him on 28 April 2014, 21 October 2014 and 7 July 2015. The report used at the hearing was a revision of an earlier report or reports and was prepared following the consultant’s last inspection of the property on 7 July 2015. The report detailed and scheduled numerous works which were “incomplete, unsatisfactory or not attempted”. A Scott Schedule with costings was attached. As we have noted above at [12], the consultant gave evidence at the hearing in response to questions from the Member and with reference to his report and Scott Schedule, and he was questioned by Mr Iyadurai. The questions which Mr Iyadurai asked him related only to particular items such as driveway drainage, bathroom drainage, and landscaping, particularly with reference to the local Council’s occupation certificate, and also to the need for maintenance by the purchasers. No direct challenge was made by Mr Iyadurai to the consultant’s expertise or to any of his costings or other details in the report.
  2. A principal expression of their complaints about the expert report in the appellants’ submissions is that:
“The opinions in the expert report are not based on facts, matters and assumptions and the cost estimates are not competitive quotes and they are not substantiated by any calculations, neither has he provided reasons for his opinion which further confirms that the expert is not professional and does not meet the requirements of an expert report.”

Their submissions in reply add a complaint that the report fails to meet the requirements of the Tribunal’s Practice Direction No.3 and of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.

  1. We are considering these complaints concerning this report in the context of an allegation that the appealed decision was against the weight of evidence. Effectively, the appellants’ submissions are that the report should not have been admitted into evidence and should not have been used for the purposes of the appealed decision. We note that in Makita v Sprowles at [85] Heydon J said:
“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; there must be identified an aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be ‘wholly or substantially based on the witness’s expert knowledge; so far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached; that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’ and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded.”
  1. We also note that the Tribunal’s Practice Direction 3 deals with Expert Witnesses principally by adopting a code of conduct for such witnesses based on Schedule 7 to the Uniform Civil Procedure Rules 2005. It stipulates that an expert’s report must include an acknowledgment that the expert has read the experts’ code of conduct and agrees to be bound by it. It suffices for us to say that we see the purchasers’ consultant’s report as substantially complying with the requirements summarised by Heydon JA and the experts’ code of conduct. The report did not include an acknowledgment that the consultant had read the experts’ code of conduct and agreed to be bound by it. The Procedural Direction, however, includes clause 3:
“The Tribunal may excuse an expert witness or any other person from complying with this Procedural Direction before or after the time for compliance.”
  1. In our opinion in the circumstances we have related above, it was in order for the Member to have received this report into evidence and acted upon it.

Other Matters

  1. The appealed decision at [25] stated:
“It has not been disputed in the present case that the second, third and fourth respondents were developers within the meaning of s3A of the Home Building Act 1989. I am satisfied that for the purposes of subsection (2) ‘residential building work’ was being done in a building or residential development where 4 proposed dwellings would be owned by the partnership comprised of the second, third and fourth respondents.”
  1. In submissions in reply an issue has been raised on behalf of the appellants that there was no concession by the appellants to the effect there stated in the decision and that there was no pleading or evidence to support it. Section 3A of the HBA provides:
(1) For the purposes of this Act, an individual, a partnership or a corporation on whose behalf residential building is done in the circumstances set out in subsection (2) is a developer in relation to that residential building work.
(1A) Residential building work done on land in the circumstances set out in subsection (2) is, for the purpose of determining who is a developer in relation to the work, deemed to have been done on behalf of the owner of the land (in addition to any person on whose behalf the work was actually done).
Note: This makes the owner of the land a developer even if the work is actually done on behalf of another person (for example, on behalf of a party to a joint venture agreement with the owner for the development of the land). The other person on whose behalf the work is actually done is also a developer in relation to the work.
(2) The circumstances are:
(a) the residential building work is done in connection with an existing or proposed dwelling in a building or residential development where 4 or more of the existing or proposed dwellings are or will be owned by the individual, partnership or corporation, or
(b) the residential building work is done in connection with an existing or proposed retirement village or accommodation specially designed for the disabled where all of the residential units are or will be owned by the individual, partnership or corporation.
(3) A company that owns a building under a company title is not a developer for the purposes of this Act.
  1. At the directions hearing in the subject proceedings on 7 April 2015 the following exchange occurred between the Member and Messrs Augustus and Iyadurai (transcript p.4):
MEMBER: What is Ausko Building & Construction Pty Limited – I see in the notes that they’re not licensed. Were they the builders?
V AUGUSTUS: They’re the builders, yes.
MEMBER: And you were the developers? You owned the land?
V AUGUSTUS: Correct.
IYADURAI: We did own the land.
MEMBER: Did own the land, you developed it—
IYADURAI: Correct, yeah.
MEMBER: --you sold it off.
IYADURAI: Yep.
MEMBER: Units, are they, townhouses?
IYADURAI: Townhouses.
  1. At the hearing on 17 August 2015 Ms Sheikh gave evidence to the effect that there were four lots involved in the development, which included the property (transcript p.17). During the hearing there were numerous references to the appellants as “the developers”.
  2. It was not in dispute at the hearing that the appellants were developers. It is clear that in points of fact and law, the appellants were developers. The issue is baseless. It should not have been raised on appeal, particularly in submissions in reply (Mamo v Surace [2014] NSWCA 58; (2015) 86 NSWLR 275 at [75] to [82]; Drivas v Burrows [2014] NSWCATAP 87 at [30] to [33] and Nelmeer Ashfield Pty Ltd v Farah [2015] NSWCATAP 276 at [48], [74] and [75])).
  3. In the submissions in reply, the point is also taken that the appellants dispute the award in favour of the purchasers of $7,480.00 in respect of the cost to them of the building consultant. This point is linked to the appellants’ challenges in this appeal to the receipt of the consultant’s evidence at the hearing, which challenges we have already rejected in these reasons. In the appealed decision at [61] the Member explained this order:
“The applicants have been self-represented but it is noted that expert report costs relevant to the proof of this application have been incurred in a total sum of $7,480.00 inclusive of GST. The Tribunal and the respondents have all been provided with copies of each tax invoice and a summary of the total costs in accordance with directions which were made. Having perused the tax invoices and the summary, I am satisfied that it would not be appropriate for the monies payable to the applicants to be reduced by the cost of the experts reports which were necessary to allow the claim to be properly established. In the circumstances the respondents are ordered to pay the costs of the applicant in an assessed sum of $7,480.00.”
  1. Such an order would be within the generality of the monetary orders which the Tribunal is empowered to make by s48O(1)(a) of the HBA:
An order that one party to the proceeding pay money to another party or to a person specified in the order, whether by way of debt, damages or restitution, or refund of any money paid by a specified person.

In our opinion this order in the appealed decision was appropriate and does not warrant any review in this appeal.

  1. In the appealed decision no order was made in respect of the builder. The appellants complain about that. As the contractor for the work on the property, the builder also had a potential liability to the purchasers, which has not been determined, despite the builder being a party to the subject proceedings and represented at the hearing on 17 August 2015. The builder was not party to this appeal and no representative of the builder attended the hearing of the appeal. The proceedings should be remitted to the Consumer and Commercial Division as previously constituted if that be practicable, for consideration of any order that may be appropriate to be made in respect of the builder. The builder provided no evidence at the hearing and that consideration should be made on the evidence that was tendered at the hearing of the subject proceeding.

Conclusion

  1. It follows from the reasons we have given above that we are satisfied that none of the grounds relied on by the appellants has been made out. The Appeal and Application for Leave to Appeal should be dismissed. The orders made in the appealed decision should be affirmed, and the proceedings should be remitted to the Consumer and Commercial Division for consideration of the issue of any order that may be appropriate to be made in respect of the builder.

Stay

  1. As we have noted above at [26], there is an extant application by the appellants for a stay in respect of the appealed decision, coupled with an order restraining the purchasers from carrying out rectification work on the property. Section 43(3) of the NCAT Act empowers the appeal panel in its discretion to order such a stay or make such other order as “it considers appropriate to secure the effectiveness of the determination of the ... appeal”. Having regard to the conclusions we have come to in this appeal, such a stay or any other order is not appropriate and that application should be dismissed.

Costs

  1. The purchasers had legal representation at this appeal and have asked for costs. The issue of the costs was not the subject of any submissions at the appeal hearing. As the Notice of Appeal was lodged before 1 January 2016 new r 38A in the NCAT Rules does not apply and in accordance with s 60 of the NCAT Act special circumstances warranting an award of costs would have to exist. Nevertheless, the purchasers should be given an opportunity to pursue the issue of costs and we will make orders concerning that.

Orders

  1. The Appeal Panel therefore makes the following orders:

********

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

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