Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dave King Building Services Pty Ltd v LeLievre; LeLievre v Dave King Building Services Pty Ltd [2020] NSWCATAP 204 Hearing dates: 18 May 2020 Date of orders: 02 October 2020 Decision date: 02 October 2020 Jurisdiction: Appeal Panel Before: T Simon, Principal Member S Frost, Senior Member Decision: In AP 20/09999: (1) Leave to appeal is refused. (2) The appeal is dismissed. In AP 20/18810: (1) The application for an extension of time in which to appeal is refused. (2) The appeal is dismissed. Catchwords: APPEAL – expert opinion evidence – failure to refer to or comply strictly with Expert Witness Code – potential conflict of interest – discretion to reject the tender of an expert report filed and served late APPEAL – application for extension of time to lodge appeal – length of delay – prejudice to other party – prospects of success Legislation Cited: Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: None cited Category: Principal judgment Parties: In AP 20/0999: Dave King Building Services Pty Ltd (Appellant) Stuart Gregory LeLievre (Respondent) In AP 20/18810: Stuart Gregeory LeLievre (Appellant) Dave King Building Services Pty Ltd (First Respondent) David Warrick King (Second Respondent) Representation: In AP 20/0999: Counsel: A Munro (Appellant) Solicitors: Campbell Paton & Taylor Solicitors (Appellant) Peter Payne Law (Respondent) In AP 20/18810 Counsel: A Munro (Respondents) Solicitors: Peter Payne Law (Appellant) Campbell Paton & Taylor Solicitors (Respondents) File Number(s): AP 20/09999; AP 20/18810 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 31 January 2020 Before: D Goldstein, Senior Member File Number(s): HB 18/27996 Reasons for decision 1. On 21 June 2018, Stuart LeLievre, the homeowner, made an application to the Tribunal against David King, the builder, and Dave King Building Services Pty Ltd, the building company, in relation to defective residential building work carried out on his home between October 2016 and May 2017. 2. On 31 January 2020 the Tribunal: 1. dismissed the homeowner's claim against the builder, finding that the party contracting with the homeowner was the building company, and not the builder in his individual capacity; and 2. ordered the building company to pay the homeowner the sum of $86,104.62. 1. On 27 February 2020, the building company appealed against the Tribunal decision. 2. The building company says the homeowner's claim against it should have been dismissed. 3. On 21 April 2020, the homeowner also appealed. That appeal was lodged out of time. The homeowner says the order for payment should have been made against the builder himself, as well as against the building company. However, the homeowner does not contest the amount awarded to him by the Tribunal. 4. In relation to the building company's appeal we have decided not to grant leave to appeal on grounds other than a question of law, and to dismiss the appeal to the extent that it raises a question of law. In relation to the homeowner's appeal we have decided not to grant an extension of time in which to appeal. Our reasons follow. The Tribunal decision 1. At the commencement of the Tribunal hearing the Tribunal member noted several unsatisfactory aspects of the pre-hearing activities of the parties, namely that: 1. The builder's entities had been almost 3 months late in filing and serving their expert evidence and a completed Scott Schedule; 2. They had failed (contrary to an earlier Tribunal direction) to provide an affidavit in support of an application for leave to rely on any such late material; 3. Although the homeowner's solicitor had been served with that material some 2 weeks prior to the Tribunal hearing, the solicitor had not sent a copy of the report of the builder's entities to the homeowner's expert; and 4. The parties' respective experts had not (again, contrary to an earlier Tribunal direction) met and prepared a joint expert report to assist the Tribunal in its consideration and resolution of the dispute. 1. The Tribunal member took the view that the main cause of the 'predicament' that the Tribunal and the parties found themselves in as a result of this unsatisfactory state of affairs was the failure of the builder's entities to file and serve the expert report in a timely fashion. He refused leave for the builder's entities to rely on the expert's report and, mindful of the Tribunal's guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings, went ahead with the hearing (which had already been postponed some 3 months earlier) and determined the matter. 2. The Tribunal found that a contract existed between the homeowner and the building company for the carrying out of residential building works. The contract was an oral contract, entered into on 26 or 27 March 2016, with the arrangements between the parties described by the Tribunal as 'vague and imprecise'. 3. In the absence of any expert evidence from the builder's entities, the Tribunal took into account the evidence of the homeowner's witness, Mr Troy, to determine whether the building company was liable to compensate the homeowner and, if so, to what extent. The Tribunal referred to Mr Troy's evidence as 'expert evidence' (at [21]), and noted there was no challenge to Mr Troy's status as an expert or his ability to give opinion evidence in the Tribunal (at [22]) and no evidence to contradict Mr Troy's opinion that the building work was 'substandard' (at [29]). 4. The Tribunal then dealt with items 2 to 12 as identified in the Scott Schedule prepared by Mr Troy, quantifying the amount payable by the building company in respect of each item. The table at [121] of the Tribunal's reasons summarises the various amounts and specifies the total amount payable to the homeowner by the building company, namely $86,104.62. 5. In the course of its reasons the Tribunal had specifically found at [17] that 'Mr King himself had no intention of contracting with the owner on a personal basis'. This was the reason for the Tribunal's finding that the party contracting with the homeowner was the building company, rather than the builder himself, and the reason for the Tribunal's dismissal of the homeowner's claim against the builder. Availability of appeal 1. An internal appeal in this Tribunal may be made as of right on a question of law, and otherwise with the leave of the Appeal Panel: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). 2. However, the circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 to the NCAT Act. The Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. The decision of the Tribunal under appeal was not fair and equitable; or 2. The decision of the Tribunal under appeal was against the weight of evidence; or 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. Even if an appellant has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. matters of principle; or 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond what is arguable, or an error that is plain and readily apparent and not merely peripheral, so that it would be unjust to allow the finding to stand; or 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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. Part A – The building company's appeal 1. The Notice of Appeal lodged by the building company on 27 February 2020 specified 9 grounds of appeal, eight of them dealing with the way the Tribunal dealt with the evidence of Mr Troy and the ninth challenging the Tribunal's finding that s 48MA of the HB Act 'had no application'. (Section 48MA provides that the Tribunal, in determining a claim of this kind, is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome.) 2. The grounds of appeal were subsequently amended to include a tenth ground, challenging the Tribunal's refusal to accept the report of the builder's entities' expert, Mr Rendell. 3. During the appeal hearing the building company's counsel, Mr Munro, indicated that ground 9, dealing with s 48MA of the HB Act, was no longer pressed. 4. The building company claims to have suffered a substantial miscarriage of justice and seeks leave to appeal on two bases: first, that the Tribunal decision was not fair and equitable; and secondly, that the decision was against the weight of evidence. 5. It seemed to the Appeal Panel – and Mr Munro initially confirmed – that the grounds specified in the amended Notice of Appeal did not raise a question of law. Nevertheless, Mr Munro later conceded that his claim of 'legal unreasonableness' on the part of the Tribunal (as articulated in [51] of his written submissions) in characterising Mr Troy as the only unchallenged expert in the proceedings, raised a question of law. 6. We did not accept that this question had been squarely raised as a ground of appeal but we granted leave to amend the appeal to include this ground. We did this in light of the fact that the homeowner's solicitor had already addressed the broad issue of Mr Troy's status in his written submissions and no prejudice arose from our granting leave. The appeal grounds 1. The grounds of appeal are as follows (the emphasis, both bold and italics, is Mr Munro's): 1. The Tribunal erred in finding that the 'only expert evidence in the proceedings was the owner's' [Reasons at 21]. 2. The Tribunal erred in finding that 'there was no challenge to Mr Troy's status as an expert or his ability to give opinion evidence in the Tribunal' [Reasons at 22]. 3. The Tribunal erred in finding that Mr Troy be accepted as an expert witness [Reasons at 26, 27]. 4. The Tribunal erred in finding that 'there was no evidence to contradict Mr Troy's opinion' [Reasons at 29]. 5. The Tribunal erred in failing to find that Mr Troy had a conflict of interest in that he gave evidence both as a witness of fact and as an expert witness [Reasons at 31]. 6. The Tribunal erred in accepting Mr Troy's evidence that the builder's work was defective [Reasons 46, 58, 66, 71, 79, 84, 90, 94, 99, 109, 119]. 7. The Tribunal erred in failing to consider the evidence of David King as evidence that contradicted the evidence of Mr Troy. 8. The Tribunal erred in finding that 'Mr Troy was the only expert to give evidence in these proceedings' [Reasons at 122]. 9. (Not pressed) 10. The Tribunal erred in declining leave to the Appellant to rely upon the expert report of A Rendell & Associates Construction Consultants at the hearing of the proceedings on 17 September 2019. 11. (Identified as a separate ground during the appeal hearing – see [21] above) – The Tribunal's conclusion that Mr Troy was the only unchallenged expert was a conclusion reached by means of legal unreasonableness. 1. It will be seen that there is some overlap in grounds 1 to 8, which, together with ground 11, all concern the way the Tribunal dealt with Mr Troy's evidence. On the other hand, ground 10 stands by itself, and for that reason it is convenient to deal with it first. Ground 10 – rejection of the Rendell report 1. Section 36 of the NCAT Act sets out the guiding principle to be applied to practice and procedure in the Tribunal as follows: (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. (2) The Tribunal must seek to give effect to the guiding principle when it— (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal— (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (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. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. 1. We commence with the observation that an Appeal Panel will generally be reluctant to interfere with the exercise of a discretionary judgment concerning the acceptance or rejection of a party's evidence. 2. In this case the building company had failed to file its expert report, either by the original due date or by the extended due date that was granted following the initial non-compliance. The non-compliance had serious consequences: the buffer of over 13 weeks between the extended due date and the hearing date, which was meant to allow for a meeting between the experts and the preparation of a joint report, had effectively disappeared by the time the expert's report was filed only 2 weeks prior to the hearing. But more than that, the attempt to tender the late report at the commencement of the hearing was not supported by affidavit evidence – which was one of the stipulations made by the Tribunal when the extension of time was granted. 3. As the Tribunal member noted, if the Rendell report had been accepted into evidence the hearing probably could not have proceeded on 17 September 2019, or at least not to finality. That would have required an alternative (or additional) hearing date, and probably once again in Dubbo, where neither the parties, the witnesses nor the Tribunal member are usually located. And the disruption extends further, since every delay in this matter potentially causes a corresponding delay for other Tribunal users who are waiting for their matters to be heard. 4. In weighing up the options, the Tribunal member referred to the guiding principle in s 36 of the NCAT Act – to facilitate the just, quick and cheap resolution of the real issues in the proceedings – saying this at page 3 of the transcript: So far as just is concerned the Applicants [although he later corrected this to 'Respondents'] have had ample opportunities to serve the Expert evidence upon which they wish to rely. … So the Respondent builder has not been denied of an opportunity to put on his expert evidence he simply [has] not been able to do so in a proper way. So far as quick and cheap is concerned I cannot see that a continued adjournment of these proceedings can be either quick or cheap to have the parties continually coming back to Dubbo as and when basically Mr Rendell's evidence is available … 1. There can sometimes be a degree of tension between 'just' on the one hand, and 'quick and cheap' on the other. Furthermore, what one party considers 'just' will not always be viewed that way by the other. 2. In this case, the appellant claims the Tribunal's focus on 'quick and cheap' was at the expense of 'just', but the claim does not acknowledge the reality that what the appellant views as 'just' would have seriously jeopardised a 'quick and cheap' resolution. That would hardly be 'just' to the homeowner, who was found by the Tribunal to be largely blameless for the state of affairs that had arisen. 3. In our view the Tribunal member properly and even-handedly took account of each of the components of the guiding principle and, in difficult circumstances, exercised his judgment in a reasonable way. As he said in upholding his decision not to accept the Rendell report: … I really can't see the point of the Tribunal making orders of the type it made on the 24 May and the 2 August if they're simply to be put to one side on oral submissions from the bar table regarding the reasons for Mr Rendell being some [3 months late]. 1. We agree with that observation. We also note that s 36(3) of the NCAT Act imposes on all parties and their representatives the duty to comply with all directions and orders of the Tribunal. It should come as no surprise that the Tribunal's approach will generally be to insist on the fulfilment of that duty. 2. We find no error in the Tribunal rejecting the report and on that basis this appeal ground fails. Ground 1 – the only expert evidence was the homeowner's? 1. The excerpt quoted in Ground 1, extracted from the Tribunal's reasons at [21], is contained in the first paragraph under the heading 'The experts'. 2. It is clear to us that the statement in the excerpt, which is preceded by the word 'Therefore', was made against the backdrop of the developments leading up to the hearing, and particularly the late filing of the report from Mr Rendell. The statement comes immediately after the sentence 'At the hearing for the reasons provided, I ruled that I would not allow the late evidence of the builder's expert to be tendered.' 3. The context demonstrates that the Tribunal's focus was on the previously expected competition between an expert report from each side – one from Mr Troy for the homeowner, and one from Mr Rendell for the builder's entities. In that context, it is reasonable for the Senior Member to state, as he did, that Mr Troy's evidence was the only expert evidence. The Tribunal was explaining that it had expected to have to deal with two expert reports, but it did not turn out that way because one of the reports was filed late and was not accepted into evidence. Seen in its proper context, the statement says no more than that and on that basis this ground must fail. Ground 2 – challenge to Mr Troy's status or ability to give opinion evidence? 1. Paragraph 22 of the Tribunal's reasons includes a careful statement which should not be read as stating or implying more than it actually says. 2. The Tribunal was correct to say that Mr Troy's 'status as an expert' and his 'ability to give opinion evidence in the Tribunal' were not challenged. What was challenged was Mr Troy's independence, his impartiality, his alleged status as an advocate for the homeowner, his failure to explain how the alleged defects did not meet Australian Standards or relevant Building Codes, his failure to refer to or acknowledge what is set out in NCAT Procedural Direction 3 (the Expert Witness Code, or simply Code). 3. The Expert Witness Code defines an 'expert witness' or 'expert' as '[a] person who has specialised knowledge based on the person's training, study or experience and who gives evidence of an opinion based wholly or substantially on that knowledge'. The appellant did not challenge Mr Troy's status as a person satisfying that definition; it challenged the quality and the helpfulness of the evidence he did give in that capacity. We see no error in the Tribunal's finding at [22] of the reasons. Ground 3 – accepting Mr Troy as an expert witness? 1. We refer again to the definition of 'expert witness' in the Expert Witness Code, as set out in the preceding paragraph. 2. It was certainly open to the Tribunal to accept Mr Troy as an expert witness within the definition, based on his 15 years' experience as a builder: [23] and [27] of the reasons. This is despite the fact that Mr Troy did not refer to the Expert Witness Code in either of his affidavits – a point acknowledged by the Tribunal at [24] and [27] – and that his report was 'not in the form that one usually sees in the Tribunal': [27]. Those two factors render Mr Troy's evidence not strictly in compliance with clause 19 of the Code but in light of clause 7, non-compliance is not a disqualifier in any event. 3. The Tribunal identified at [26] that Mr Troy had a possible conflict of interest since, as well as giving evidence of defective workmanship, he also carried out remedial work and new building work on the homeowner's residence. However, at [31] the Tribunal found these additional roles did not influence Mr Troy's evidence. 4. The Tribunal noted at [28] the need to determine the weight to be given to Mr Troy's evidence – most likely a reference to clause 3 of the Code ('the acceptability of expert evidence is a question of weight not admissibility'). 5. The Tribunal's acceptance of Mr Troy as an expert witness resulted from an entirely orthodox consideration of the evidence, the Expert Witness Code, and the submissions of the parties. Ultimately it was an evaluative judgment and it was a judgment well open to the Tribunal. 6. We see no error in the Tribunal's acceptance of Mr Troy as an expert witness. Ground 4 – no evidence to contradict Mr Troy's opinion? 1. The appellant complains that the evidence of Mr King, the builder, contradicts Mr Troy's opinion but that the Tribunal failed to take Mr King's evidence into consideration in a meaningful way, or at all. 2. The appellant supports that claim with a table of information in its written submissions at [31] which refers to specified paragraphs of Mr King's affidavit, sworn on 24 May 2019, and to specified pages of the transcript where Mr King addressed each of the items in Mr Troy's Scott Schedule. The appellant says at [32] that if the Tribunal had taken the specified material into account there is a 'significant […] possibility or chance that was fairly open to the appellant that it may have achieved a better or more favourable outcome'. 3. We have examined Mr King's affidavit carefully and have identified only a few isolated instances where he claims, contrary to Mr Troy's opinion, that his work was carried out to an acceptable standard. They include one at [112] – 'The joints were set and finished to a level 4 standard' – and another one at [140] – 'The fall met Australian Standards, being 1:100 for the bathroom laundry and 1:60 for the shower recess'. 4. Much of the remainder of the affidavit deals with the logistics of the building work he carried out – the difficulties with the ordering and delivery of materials; the warnings he gave about the age and condition of the dwelling, and the building methods he used to deal with them; the homeowner's rejection of some of Mr King's suggestions for replacing or reinforcing old structural items; the repeated changes to the plans as the build progressed; and the fact that he was not allowed to finish one stage of the job before being directed to move on to another. That material really amounts to an attempt to explain the problems Mr King had to contend with, and why his relationship with the homeowner and his wife continued to deteriorate as the project went on. 5. As for Mr King's oral evidence, there were some instances where in cross-examination he rejected the characterisation of some of his work as defective, including the use of roofing materials that were too short (transcript page 95), and nailing the fascia to the rafter ends rather than using fascia brackets, which had been ordered but not delivered (page 97). He also denied having left the site without sealing and waterproofing the work that had been done up to the time he left (page 98). 6. On the other hand, Mr King's affidavit does contain an acknowledgment of the defective nature of some of the work, such as the roof hip angle (at [146] and [149]) and some other minor items (at [163]), and an acceptance that some of the work was incomplete (at [160]). He also conceded in cross-examination that 'certain parts' of the building needed rectifying (transcript page 99) but claimed he 'hadn't been given a chance to finish anything because all these other things kept popping up' (page 100). 7. While it was not correct for the Tribunal to say there was no evidence to contradict Mr Troy's opinion, the comment was made in the context, once again, of a discussion of the expert evidence before the Tribunal. Two paragraphs earlier the Tribunal had noted that Mr Troy was the 'only expert' to give evidence; to say at [29] that there was 'no evidence' to contradict Mr Troy's opinion can, and we think should, be read as 'no evidence from a competing expert' to contradict Mr Troy's opinion. 8. Even if we are wrong with that, there is no doubt that Mr King's evidence weighs very weakly against the comprehensive critique provided by Mr Troy, which the Tribunal was entitled to, and did, accept and on that basis we would not grant leave on this ground as it has not resulted in a substantial miscarriage of justice. Ground 5 – no finding of conflict of interest 1. The Tribunal dealt with the 'conflict of interest' issue in two places. At [26] it said the fact that Mr Troy was giving evidence about defective work and had also carried out building work on the homeowner's residence, some of which was to correct the identified defects, 'provided a basis for a finding to be made' that he had a conflict of interest. However, at [31] the Tribunal said Mr Troy's additional building work for the homeowner 'was not a factor that influenced his evidence in these proceedings'. 2. The appellant attacks that finding in reliance on a number of authorities, cited at [43]-[48] of its written submissions. Those authorities, and many others like them, refer to the requirements that an expert witness should provide independent assistance to the court or tribunal; the opinion should be objective, unbiased and disinterested; and the expert's paramount duty is not as an advocate for a party but to the relevant court or tribunal. 3. The Tribunal's Expert Witness Code, already referred to in [39]-[43] above, is reflective of each of those concepts. It is clear from the Tribunal's reasons at [24]-[31] that the Expert Witness Code was at the forefront of the Tribunal's mind when Mr Troy's status and the evidence he was giving were being assessed. 4. The appellant's real complaint is that the Tribunal did not (as the appellant does) consider Mr Troy's evidence unreliable, or somehow tainted by the circumstances of his engagement. But the Tribunal clearly addressed that issue and made a judgment that, in all the circumstances, Mr Troy's evidence delivered what the Expert Witness Code seeks from an expert – namely, a 'soundly based, complete and reliable' opinion (clause 1 of the Code). The Tribunal was fully entitled to form that judgment and we see no error in the way the Tribunal went about its task. Ground 6 – accepting Mr Troy's evidence that the work was defective 1. The claim in this ground seems to be that the Tribunal should not have found the building work was defective since Mr Troy's evidence did not explain how the work fell short of any specified Australian Standard or Building Code provision. 2. The Tribunal said at [14] that the relevant statutory warranty under consideration was 'that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract'. That is a slight paraphrase of s 18(1)(a) which contains the words 'proper and workmanlike manner' rather than 'due care and skill' but nothing turns on the discrepancy. 3. At [29] the Tribunal noted Mr Troy's opinion that the work 'should be demolished because it was almost all defective', that it was 'substandard', that it was 'below average' and that it 'just wasn't built properly'. At [30] the Tribunal accepted Mr Troy's evidence and inferred that by expressing himself in those terms Mr Troy meant that the work was not carried out with due care and skill. 4. We do not see any error in the Tribunal's acceptance of Mr Troy's opinion despite Mr Troy's failure to reference any Australian Standard or Building Code provision. The Tribunal was entitled to accept an opinion that the work was not done to a proper standard because the opinion was being expressed by a person who, the Tribunal found, was an experienced builder with an appreciation of the proper standards of workmanship. That was enough to support a conclusion that the statutory warranty had been breached. Ground 7 – failing to consider the evidence of Mr King as evidence that contradicted the evidence of Mr Troy and; Ground 8 – Mr Troy the only expert to give evidence in these proceedings? 1. We have already dealt with these grounds in our analysis of ground 4 and do not need to deal with them any further. Ground 11 – 'legal unreasonableness' in the Tribunal's conclusion that Mr Troy was the only unchallenged expert? 1. We understood this ground to be making the claim that the Tribunal's conclusion in relation to Mr Troy and his evidence was so unreasonable that no reasonable decision-maker could have made it. In light of what we have already said in relation to grounds 1 to 4, this ground cannot succeed. Conclusion on the building company's appeal 1. In relation to grounds 1 to 8 and 10, and having regard to our overall assessment of the way the Tribunal dealt with Mr Troy's evidence, we are not satisfied that the appellant may have suffered a substantial miscarriage of justice – whether on the basis of either of the requisite factors ('decision not fair and equitable' or 'against the weight of evidence') or otherwise. Accordingly we refuse leave to appeal on those grounds. 2. Ground 11, relating to 'legal unreasonableness', fails. Part B – The homeowner's appeal 1. The homeowner's appeal was lodged late but the Tribunal has the power to extend the time for lodgement: s 41, NCAT Act. 2. The homeowner, who was the successful party before the Tribunal (even though his claim against the builder in his personal capacity was dismissed), initially did not appeal against the Tribunal decision because he was not dissatisfied with it. Having secured an order in his favour, for the payment of a substantial amount of money 'immediately' upon publication of the Tribunal's decision and reasons on 31 January 2020, the homeowner was entitled to expect that order to be complied with. However, the payment was not made. Instead the building company appealed against the Tribunal decision, as it was entitled to do, and applied for a stay of that decision. The stay was refused but still the building company failed to make the payment. 3. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, the Appeal Panel said this about the principles that apply in regard to extension of time applications: [21] Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice. [22] The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) 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 prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]. 1. Factors (3)(a) and (d) from Jackson – the length of the delay and the extent of any prejudice to the builder's entities – are, on balance, slightly in the homeowner's favour. The appeal was lodged on 21 April 2020, which is roughly 2 months late, but in the circumstances, not unacceptably so. There is also little or no prejudice to the builder on account of the late lodgment. 2. On the other hand, the prospects of success are against the homeowner, as we will now explain. 3. While it is difficult to discern any precise ground or grounds of appeal from the Notice of Appeal or its attachments, the substance of the appeal is that the homeowner may have suffered a substantial miscarriage of justice on every one of the three bases in cl 12(1) of Schedule 4 to the NCAT Act (see [15] above), namely that: 1. The decision of the Tribunal under appeal was not fair and equitable; and 2. The decision of the Tribunal under appeal was against the weight of evidence; and 3. Significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. The 'significant new evidence' that has arisen is the financial information produced by the building company in support of its stay application. However, in response to the Appeal Panel's query, the homeowner's solicitor was unable to explain how that information supports the homeowner's assertion that the initial claim against the builder should not have been dismissed. 2. The thrust of the homeowner's case seems to be that he always thought he was making a deal with David King, the individual; there had been no mention of Mr King's company until the first two invoices for work performed were issued, in the name of the company, in October 2016. 3. Nevertheless, the evidence before the Tribunal included Mr King's affidavit sworn on 24 May 2019, in which he said at [4]: The company Dave King Building Services Pty Ltd has been operating since 2010 and since that date I have carried out all work under that name. 1. As already mentioned, the Tribunal found at [17] of its reasons that 'the party contracting with the [homeowner] was Dave King Building Services Pty Ltd'. It also found that 'Mr King himself had no intention of contracting with the owner on a personal basis'. Although those findings were not sourced to any specific items of evidence, the only relevant evidence bearing on the issue comprised (a) Mr King's positive statement that his company was the contractor, and (b) the homeowner's understanding (or, possibly, assumption) that he was dealing with Mr King the individual. In those circumstances, we do not accept that the decision to dismiss the claim against the individual was either 'not fair and equitable' or 'against the weight of evidence'. 2. We therefore dismiss the homeowner's appeal. Orders 1. We make the following orders. 2. In AP 20/09999: 1. Leave to appeal is refused. 2. The appeal is dismissed. 1. In AP 20/18810: 1. The application for an extension of time in which to appeal is refused. 2. The appeal is dismissed. ********** 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: 02 October 2020