Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Falzon v Evans [2021] NSWCATAP 25 Hearing dates: 10 September 2020 Date of orders: 5 February 2021 Decision date: 05 February 2021 Jurisdiction: Appeal Panel Before: P Durack, Senior Member D Robertson, Senior Member Decision: (1) The application for an extension of time within which to lodge the appeal is refused. (2) The application for leave to appeal is refused. (3) The appeal is dismissed. Catchwords: BUILDING AND CONSTRUCTION –proof of loss for incomplete and defective building work APPEALS – extension of time in which to lodge appeal – no error of law – no error warranting leave to appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Gallagher v Masters Installation Pty Ltd [2017] NSWATAP 117 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: None cited Category: Principal judgment Parties: David Falzon (Appellant) Jodie Evans (Respondent) Representation: Appellant (Self-Represented) Respondent (Self-Represented) File Number(s): AP 20/25971 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Date of Decision: 11 March 2020 Before: G Ellis, Senior Member File Number(s): HB 19/54040 REASONS FOR DECISION Background 1. This is an internal appeal against a decision of the Consumer and Commercial Division of the Tribunal delivered on 11 March 2020, by which the appellant was ordered to pay the respondent the sum of $2,345. 2. The respondent in this appeal filed a home building application against the appellant on 3 December 2019 seeking payment of $6,500 in respect of alleged defective and incomplete work carried out by the appellant pursuant to a contract for residential building work on the respondent's home. 3. The uncontroversial facts are set out by the Tribunal in the decision under appeal as follows: 10 The evidence of the Applicant and the Respondent suggests the following chronology of events. On 28 June 2018 the Respondent provided the Applicant with two quotes, for what was termed Stage 1 and Stage 2, being for renovation work on her home. It is noted that those two quotes, sent less than two hours apart, serve to split the work into two jobs, each involving less than $20,000. Those quotes were accepted and work commenced in July 2018. On. 12 November 2018 the scope of works for Stage 2 and the contract price for that work was varied and, on the same day, the Respondent suggested he would be finished by Christmas. 11 On 08 January 19, while installing a shower screen, it broke and the Respondent's hand was injured. The Respondent returned that afternoon but advised that, at the end of that week, he would be going to the Central Coast to assist his son on another building project. Text messages were thereafter exchanged as the Applicant sought to ascertain when the Applicant would return to complete the work. 12 On 12 June 2019 the Respondent advised by email that his ute and tools were stolen. In that email he said: "I understand you need some work done ASAP, so please have the work done by a handyman or such and forward bill to me for any incomplete work I have left." The Respondent also said: "I have had to take time off and have been on the coast, I will contact you when I'm back at work." The Applicant acted on that invitation which was not confined to a handyman but was expressed as "handyman or such". 13 On 29 July 2019 the Applicant began requesting Respondent to pay the cost of completing the work. It was not until after those requests, on 21 August 2019 that the Respondent advised he was filing a Workers Compensation claim for the 08 January 2019 injury, that he was going to report the Applicant to the Council and that he was going to provide a further invoice. It does not appear from the evidence that any such invoice has ever been provided. 14 Shortly after that, the Applicant contacted Fair Trading, received and followed the advice provided. On 23 October 2019 the Respondent's Workers Compensation claim rejected. In November 2019 the Respondent accused Applicant of stealing tools he had left on site and on 03 December 2019 the Applicant commenced Tribunal proceedings against Respondent. 1. The amount the appellant was ordered to pay the respondent in the decision under appeal ($2,345) was calculated on the basis that the amount the respondent owed to the appellant under the building contract or contracts was $2,155 and that the respondent was entitled to recover from the appellant the sum of $4,500 in respect of work which was incomplete or defective, with the net result being that the appellant was to pay the respondent the amount awarded. 2. The Tribunal recognised that the evidence of the costs incurred by the respondent in having the appellant's work completed and rectified was not ideal, in that the invoices produced by the respondent did not clearly separate the completion and rectification works from other work which was not part of the appellant's contract with the respondent. 3. Nevertheless, the Tribunal accepted that the respondent had discharged her burden of producing sufficient evidence to establish the losses she had sustained and that the Tribunal should do the best it could to assess the measure of loss, applying the Appeal Panel decision in Gallagher v Masters Installation Pty Ltd [2017] NSWATAP 117 (the relevant passage appears at [47]-[51] of that decision). 4. The amount of $4,500 assessed by the Tribunal represented the total of three amounts: 1. $500 in respect of work carried by Mr Brock Taikato of Brock Build. Mr Taikato was a plasterer. The respondent produced an invoice from Mr Taikato in the amount of $4,354.88. The respondent claimed that $2,500 of that invoice represented work that the appellant had failed to perform. It emerged that the respondent had recovered $3,000 against Mr Taikato in other proceedings in the Tribunal, leaving the total amount that the respondent was out of pocket in respect of Mr Taikato's invoice at $1,354.88. The evidence before the Tribunal included an email from Mr Taikato to the appellant, in which Mr Taikato stated that the work he had done at the respondent's house, resulting in the charge of $4,354.88, included, "trying to fix patches left by the previous carpenter", and also photographs tendered by the respondent. The Tribunal, doing the best it could on the available evidence, allowed $500 in respect of the payments made by the respondent to Mr Taikato. 1. $1,500 in respect of carpentry work carried out by DTN Carpentry and Home Maintenance Pty Ltd (DTN Carpentry). DTN Carpentry had issued four invoices amounting to over $8,000 in respect of carpentry works. The respondent claimed $3,000 being $1,500 in respect of one invoice for $2,704, $1,200 in respect of a second invoice for $1,573, and $300 in respect of two other invoices in the amounts of $537.56 and $3,525.50. The Tribunal awarded the $3,000 claimed by the respondent in respect of that work. The Tribunal determined that the amount claimed was reasonable on the basis that Mr DeRegt, the owner of DTN Carpentry, had provided a statement in which he gave evidence that he had invoiced the sum of $4,800 in respect of work not completed by the appellant. 2. $1,000 in respect of painting work carried out by Banana Coast Painting. Banana Coast Painting had invoiced the respondent a total amount of $2,750. The Tribunal rejected the appellant's submission that painting was not included in the scope of works on two bases: 1. That two invoices issued by the appellant referred to painting; and 2. That text messages in evidence referred to painting to be done by the appellant. The respondent claimed $1,000 of the total of $2,750. The Tribunal determined that that claim was reasonable. Extension of time 1. The appellant's Notice of Appeal was filed on 12 June 2020, more than three months after the decision and 87 days after the date on which the appellant acknowledged he had received a copy of the decision. Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) requires an internal appeal to be lodged within 28 days of the day on which the appellant was notified of the decision. 2. Accordingly, the appellant requires an extension of time to bring this appeal. 3. Section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) permits the Appeal Panel to extend the time for the lodgement of an appeal. 4. The matters to be considered in determining whether to grant an extension of time are stated in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]: (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. The appellant sought an extension of time in the Notice of Appeal. The appellant explained his failure to file the Notice of Appeal within time as "due to recent death of my brother, combined with world pandemic Covid 19 lockdown, I was unable to get back to my office to complete appeal application." 2. In the course of the hearing of the appeal, the appellant gave formal evidence expanding upon that position. The appellant stated that his eldest brother had died shortly after the hearing on 10 March 2020. He further stated that he had been on the Central Coast of NSW and had been stuck there until late May or early June and could not get back to Coffs Harbour where he lived and where all his receipts, records and documents were kept. 3. In cross examination the respondent suggested to the appellant that there had been no formal ban which had prevented the appellant from travelling. The appellant disputed that and stated that, during the relevant period, he was not permitted to travel to Coffs Harbour without a legitimate reason and he understood that lodging an appeal against the decision of the Tribunal was not a legitimate reason. He stated that all the documents received from Fair Trading NSW and the original application were kept in hard copy in Coffs Harbour. The appellant also stated that his partner had been in Western Australia and that "without her I am quite lost". 4. The respondent acknowledged that she had received payment of the judgment sum shortly after 17 March 2020. However, she stated that, after 28 days had elapsed after the date of the decision, she had disposed of all her documents, and it had been quite difficult to put together the material to respond to the appeal. She said that she had had to travel to the Registry of the Tribunal to recover some of the material. 5. We have no reason to doubt the accuracy of the appellant's evidence that he was unable to travel to Coffs Harbour to obtain material. We do not accept that that is an entirely satisfactory explanation for the delay in filing the Notice of Appeal. The appellant did not suggest that he did not have a copy of the Tribunal's Reasons for Decision available to him on the Central Coast during the relevant period. 6. Although the respondent was inconvenienced by the late filing of the appeal, it does not appear that she has suffered prejudice, as she was able to obtain the material she required. 7. Were we persuaded that the appeal had any prospects of success, we would have been minded to grant an extension of time. However, for the reasons we set out below, we do not find that the appellant's grounds of appeal have sufficient merit to warrant the grant of an extension of time and the application for an extension of time will be refused. The Scope and Nature of Internal Appeals 1. By virtue of s 80(2) of the NCAT Act, internal appeals from decisions of the Tribunal may be made as of right on a question of law, and otherwise with leave of the Appeal Panel. 2. 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 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because: 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. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division 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, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 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 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; 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. Grounds of Appeal 1. The appellant attached to his Notice of Appeal an eight-page document headed "Grounds of Appeal". That document did not set out any specific grounds of appeal. The document was discursive and did not clearly articulate any question of law. The document rather challenged the Tribunal's conclusions regarding the extent to which the work recorded in the invoices relied upon by the respondent reflected work not completed by the appellant. 2. As an Appeal Panel stated in Cominos v Di Rico [2016] NSWCATAP 5 at [13]: 13 It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice." 1. In conformity with that approach to grounds of appeal filed by unrepresented litigants, we have sought to identify in the appellant's "Grounds of Appeal" document any grounds that may raise a question of law or a basis for leave to appeal. Procedural Fairness 1. The first point raised by the appellant, which he expanded upon in oral submissions, was that, by reason of a number of personal issues, he had not been able to prepare for the hearing and also that his "mindset on the day of the hearing" had been impacted by those personal issues. 2. The appellant asserted that he "alert[ed] the Member that I was having personal issues and was not fully prepared" but had been required to continue with the hearing. 3. We understand the appellant to be making a complaint that he was not accorded procedural fairness in that the Tribunal required him to proceed when he was not in a position to conduct his defence adequately. 4. A failure to accord procedural fairness raises a question of law. However, we are not persuaded that the appellant has established that he was denied procedural fairness in this case through being required to proceed with the hearing. 5. There is no failure to accord procedural fairness merely by failing to adjourn proceedings when a party asserts they are not ready and not in the "right mindset". Hearings are expected to proceed on the day allotted, save in exceptional circumstances. 6. The appellant did not produce any medical certificate or other evidence to establish that he was not fit to appear and present his case on 10 March 2020. The appellant did not produce evidence to the Appeal Panel to establish that he had not received the respondent's evidence in sufficient time to prepare. 7. We note that the respondent asserted that the appellant had had from 17 January 2020 to prepare for the hearing on 10 March 2020. 8. The appellant also submitted that the respondent had altered her evidence by the substitution of different invoices shortly before the hearing. The appellant did not provide any documentation to make good this submission. In oral submissions the appellant acknowledged that he had received all the material upon which the respondent had relied before the hearing and had had a chance to consider it. 9. We are not satisfied the appellant has established there was a failure to accord procedural fairness in relation to the disclosure of evidence by the respondent. Other grounds 1. Apart from the allegations which might be characterised as allegations of breach of procedural fairness, the entirety of the appellant's statement of his grounds of appeal consisted of challenges to the Tribunal's findings of fact. As such it does not disclose any question of law. Leave to appeal 1. The appellant also recorded in his Notice of Appeal that he sought leave to appeal on the grounds that the decision was not fair and equitable and against the weight of evidence and also on the basis that there was new evidence now available that was not reasonably available at the time of the hearing. Not fair and equitable and against the weight of evidence 1. In support of his submission that the decision was not fair and equitable and was against the weight of evidence, the appellant asserted that the respondent had not told the truth and that her evidence should not have been accepted. The appellant did not provide to the Tribunal any transcript of the oral evidence before the Member or a recording of the hearing. In those circumstances the Appeal Panel is not in a position to assess whether the Tribunal's decision, and in particular the Tribunal's acceptance of the respondent's evidence, was against the weight of evidence or not fair and equitable. 2. The appellant did not point to any documentary evidence which clearly showed that the respondent's version of events was not accurate or that the appellant had suffered a substantial miscarriage of justice by reason of the decision. New evidence 1. The new evidence upon which the appellant sought to rely consisted of: 1. Emails dated 22 and 23 January 2019 between the appellant and the respondent, in which the appellant informed the respondent that "Bathroom reno has gone well and is fully operational. It will be ready to use tomorrow" and had sought a progress payment, to which the respondent had replied "Thanks Dave, looking forward to seeing the finished room. I have transferred the money tonight"; and 2. Documents relating to the respondent's claim against Mr Taikato which disclosed that the Tribunal had awarded the respondent $3,000 compensation against Mr Taikato; that Mr Taikato had applied to set aside the decision; and that the respondent had resolved the dispute with Mr Taikato on the basis that Mr Taikato's liability was reduced to $2,700 rather than $3,000. 1. In oral submissions the appellant submitted that he had not included the emails in the evidence submitted to the original hearing because he had not had a proper chance to prepare. The appellant submitted that the emails showed that the bathroom was complete. 2. We do not consider that the emails are evidence that the bathroom was complete. All they show is that the appellant told the respondent that that was the case. The respondent's reply indicates that she had not seen the bathroom. It does not constitute any admission that the appellant's assertion was correct. 3. In any event, it is clear that the emails do not satisfy the requirements of sub-paragraph (c) of clause 12 of Schedule 4. It cannot be said that those documents were not reasonably available at the time of the original hearing and, accordingly, even if the emails had established what the appellant asserted, a grant of leave to appeal in order to rely upon them would not be warranted. 4. The application by Mr Taikato to set aside or vary the Tribunal decision appears to be dated 19 March 2020 and thus would not have been available at the time of the original hearing on 10 March 2020. However, that document does not establish that the appellant may have suffered a substantial miscarriage of justice. It rather suggests that the appellant has been advantaged in that the measure of damages awarded against the appellant was assessed on the basis that the respondent had recovered $3,000 from Mr Taikato when it appears that the amount recovered was only $2,700. 5. Accordingly, we are not persuaded that, if an extension of time were granted, the appellant would have any prospects of success in the appeal. 6. Our orders are: 1. The application for an extension of time within which to lodge the appeal is refused. 2. The application for leave to appeal is refused. 3. 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: 05 February 2021