Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kode v Tassone [2020] NSWCATAP 108 Hearing dates: On the papers Date of orders: 10 June 2020 Decision date: 10 June 2020 Jurisdiction: Appeal Panel Before: J Lonsdale, Senior Member Decision: Leave to extend the date by which documents on which the Appellants seek to rely are to be filed is refused. Catchwords: APPEAL - Civil and Administrative Tribunal – interlocutory decision – practice and procedure – late filing of evidence – explanation for delay – prejudice to respondent – leave refused Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Mesiha v Murrell [2017] NSWCATAP 1 Texts Cited: None cited Category: Procedural and other rulings Parties: Subodh Kode (First Appellant) Tehshe Hu Kode (Second Appellant) Creative Property Group Pty Ltd (Third Appellant) Joseph Tassone (First Respondent) Mark Johnson (Second Respondent) Representation: Solicitors: First Appellant (Self Represented) Second Appellant (Self Represented) Third Appellant (Self Represented) First Respondent (Self Represented) Second Respondent (Self Represented) File Number(s): AP19/57344 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 28 November 2019 Before: D Ziegler, General Member File Number(s): HB 19/38014 REASONS FOR DECISION 1. This is an interlocutory application for leave to extend the date by documents (on which the Appellants seek to rely) are to be filed (Extension). For the reasons set out in this decision, leave for the Extension is refused. Background 1. The Appellants engaged the Respondents to carry out certain building related works at a residential development. A dispute arose between the parties regarding the amounts payable for these works. 2. On 28 November 2019, the Tribunal ordered the Appellants to pay the Respondents "the sum of $9350.00 immediately". On 23 December 2019, the Appellants filed a Notice of Appeal. The grounds identified in the Notice of Appeal are as follows: "At the time of the hearing, we still haven't received … feedback from contractors who inspected the defects, hence a claim against [the Respondents] was not made. The Tribunal Member has advised they did not receive evidence as yet or a claim against [the Respondents] was not made at the time of the hearing and advised use that a separate application has to be lodged for work performed and defects from invoice 396. As a respondent [in the Tribunal at that time] we were happy to pay invoice #396 only once defects were completed. This was made aware that a claim can be made against [the Respondents] … ." 1. On 9 January 2020, the Appeal Panel ordered the Appellants to (amongst other things) file and serve all evidence and written submissions in support of the appeal by 17 February 2020. The hearing was listed for 30 March 2020. 2. At the hearing, the Appellants advised they had filed their materials on or around 20 March 2020. As the relevant documents were not part of the file before the Appeal Panel, orders to the following effect were made: 1. A decision whether to extend the time for the Appellants' documents to be filed would be determined on the papers. 2. The Appellants are to provide submissions, including a statutory declaration addressing why the documents were filed late, by 13 April 2020. 3. The Respondents are to provide submissions as to any objection to the Extension by 28 April 2020. Evidence and submissions of the Appellants 1. On 13 April 2020, the Appellants filed an undated document entitled "Statutory Declaration" and five undated photographs. The Statutory Declaration refers to videos being attached, but no video material was filed on 13 April 2020. 2. The "Statutory Declaration" is not evidence in the form directed by the Appeal Panel. The "Statutory Declaration" is unsigned, but the typed names of "Subodh Kode" and "Tehshe Hu" appear at the end of the document. The email attaching the Appellants' documents states that "the stat dec is personal as we cannot get hold of a JP". In addition, the "Statutory Declaration" states "Due to Covid19, I cannot get a JP or visit one as most of them offering in local neighbourhood are working from home and I cannot visit". 3. I will treat the "Statutory Declaration" as the Appellants' submissions in this matter as it sets out some background to the matter and provides some reasons the Appellants consider to be relevant to the Extension. The submissions may be summarised as follows: 1. The Tribunal's decision to require the Appellants to pay $9,350 was "made out of pure ambiguity" because the Tribunal understood that the Appellants were agreeable to paying some money to the Respondents on the basis that certain defects were rectified. 2. The orders of the Tribunal have put the Appellants in a distressed position. 3. The Appellants state that the defects must be inspected by "specialised certified builders and it has been difficult for us to get hold-after coming back [from being overseas] in February". 4. The Appellants state they have "made contact with certain certified [builders] who can advise us in writing [about the alleged defects]" and "we are now waiting for certified builder to visit home and give us in writing so we can submit to both parties". The Appellants state that they will be "highly disadvantaged" if the report from the builder is not available and it would be "unfair" for the Appellants not to be granted the Extension. 1. The Appellants' submissions also state that photographs (and the video discussed above) were provided to show the alleged defects and how they have affected the Appellants' development. The photographs appear to show some kind of joinery, but without further explanation it is not possible to determine what the photographs show or their relevance to this matter. Respondent's submissions 1. On 21 April 2020, the Respondents filed submissions in reply objecting to the Extension. The submissions may be summarised as follows: 1. There is no justification for why the Appellants filed their documents late. 2. The Respondents carried out the relevant building works in 2018 and the building has been occupied by Mr Kode and Ms Hu since that time. 3. There is no explanation was to why the Appellants have "taken so long" to engage an expert to provide a report. 4. The Respondents dispute that the works they carried out could give rise to defects of the kind claimed by the Appellants and "little evidence" has been provided by the Appellants in respect of the alleged defects. Approach of Appeal Panel to extensions of time 1. Section 38(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT) Act provides that "the Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision". The discretion must be exercised in accordance with the obligations imposed pursuant to any relevant legislation and having regard to the relevant facts. 2. Section 36(1) of the NCAT Act requires the Tribunal (sitting as the Appeal Panel in this matter) to give effect to the guiding principle "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" and its powers must be exercised to give effect to the guiding principle (see s 36(2) of the NCAT Act). The parties are under a duty to cooperate to give effect to the guiding principle "and, for that purpose, to participate in the processes of the Tribunal and comply with directions and orders of the Tribunal" (see s 36(3) of the NCAT Act). In doing so, 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 costs to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings" (see s 36(5) of the NCAT Act). 3. Section 38 of the NCAT Act provides that: 1. while the Tribunal is not bound by the rules of evidence, it is to observe the rules of natural justice (see s 38(2)); 2. the Tribunal is to act with as little formality as the circumstances of the case admit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see s 38(4)); 3. the Tribunal is to take such measures as are reasonably practicable to ensure that the parties to the proceedings: 1. understand the nature of the proceedings (see s 38(5)(a)); 2. have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings (see s 38(5)(c)). 1. In Mesiha v Murrell [2017] NSWCATAP 1 at [45] the Appeal Panel summarised the principles applicable to extensions of time for the filing of evidence as follows: "(1) the just resolution of proceedings remains the paramount consideration; (2) what is a just resolution needs to be understood in the context of the purposes and objectives of the power granted to the Tribunal to resolve disputes and involves a weighing of all relevant matters; (3) speed and efficiency, in the sense of minimum delay and expense are seen as essential to the just resolution of proceedings; (4) a party should be afforded a reasonable opportunity to present its case; (5) there are limits to what is necessary in providing a reasonable opportunity to be heard, which may involve the consideration of delay and cost both to the other party and to the Tribunal; (6) the nature of the case and its importance to the party seeking an extension of time needs to be considered; (7) reasons for failure to comply will generally need to be provided and must be weighed against the effect any delay will have both on the other party and upon the Tribunal; (8) an award of costs may not always be adequate to deal with issues of prejudice, which include wasted time and strain imposed upon litigants; (9) there is no absolute entitlement to an extension of time, even if the consequence of the refusal effectively prevents a party from presenting relevant evidence in support of its case." Consideration of the Extension 1. The material filed by the Appellants on 25 March 2020 was over four weeks late. The material comprises: 1. A video stated to be of the "works performed by the builder". 2. Parts of what appears to be the transcript from the conciliation and hearing held on 28 November 2019. 1. Understood in the above statutory context and weighing of all relevant matters, the "real issues in dispute" will not be advanced by granting the Extension. The Appellants own submissions state that what is required is a report that identifies the alleged defects and how they relate to the work performed by the Respondents. The report the Appellants propose to procure from a building expert may be satisfactory evidence, but the Appellants have only recently contacted such an expert and no site visit had taken place by 13 April 2020. The Appellants have not identified any date by which the export report will be available. Accordingly, even if the Extension was granted, the evidence required to understand the Appellants' grounds of appeal (in so far as they relate to the important issue of the alleged defects) will not be available to the Appeal Panel. 2. The Appellants have been afforded a reasonable opportunity to present their case. The transcript from the hearing on 28 November 2019 indicates that the Appellants did not file any evidence before the hearing as directed by the Tribunal, but the Appellants considered that the rectification of the alleged defects was relevant and important to their obligation to pay the Respondents. The grounds of appeal filed on 23 December 2019 identify the alleged defects as an issue relevant to whether and when the Appellants would pay the Respondents and states that the Appellants are awaiting "feedback from contractors who inspected the defects". On 9 January 2020, the Appeal Panel required the Appellants to file their evidence by 17 February 2020. The Appellants failed to do so. 3. The Tribunal ordered the Appellants to pay the Respondents $9350 over five months ago. The Respondents have attended case conferences and hearings and generally complied with the orders of the Tribunal. These costs and expenses are factors to be considered as to the limits of what is necessary to provide a reasonable opportunity to be heard and the impacts on the Respondents. 4. The Appellants have not provided acceptable evidence or reasons for their failure to comply with the orders of the Appeal Panel. The only reason that appears to be relevant to their failure to comply is that the Appellants state they were overseas until sometime February 2020. However, the Appellants do not explain what effect this had on their ability to comply with the directions. The Appellants did not seek any extension or otherwise raise any issues regarding the late filing of their evidence and submissions until the day of the hearing. The Notice of Appeal filed on 23 December 2019 states that the Appellants are "awaiting feedback" from a contractor who had inspected the alleged defects, but no explanation is given as to why this feedback (or the further report identified in the "Statutory Declaration") could not be procured while the Appellants were overseas and arrangements made for it to be filed. As previously stated, it also appears that there is further evidence the Appellants wish to rely upon that they have not yet obtained. 5. Based on the matters set out above, "speed and efficiency in the sense of minimum delay and expense" as an essential part of the just resolution of proceedings may be adversely affected by granting the Extension. Orders 1. The Appeal Panel makes the following order: 1. Leave to extend the date by which documents on which the Appellants seek to rely are to be filed is refused. ********** 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: 10 June 2020