Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kesuma v Gittany [2021] NSWCATAP 46 Hearing dates: 16 October 2020 Date of orders: 2 March 2021 Decision date: 02 March 2021 Jurisdiction: Appeal Panel Before: T. Simon Principal Member G. Burton SC Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. (3) The respondent is to provide to the Appeal Panel and the appellant, either in person or by post, any submissions and documents in relation to the application for costs by 8 March 2021. (4) The appellant is to provide to the Appeal Panel and the respondent, either in person or by post, submissions and documents on costs by 15 March 2021. (5) Costs will be determined on the papers. If either party seeks to be heard in person, they should advise the Registry prior to 15 March 2021 setting out the reasons and the Appeal Panel will advise of the decision in due course. Catchwords: HOME BUILDING – work order, time to pay money. Legislation Cited: Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Cases Cited: Collins v Urban [2014] NSWCATAP 1 Texts Cited: None Cited Category: Principal judgment Parties: Edy Kesuma (Appellant) Joseph Gittany (Respondent) Representation: Solicitors: Appellant (Self-Represented) Bannermans Lawyers (Respondent) File Number(s): AP 20/19103 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Nil Date of Decision: 31 March 2020 Before: D Goldstein, Senior Member File Number(s): HB 19/09333 REASONS FOR DECISION 1. This appeal arises out of a decision in the Consumer and Commercial Division. Both the appellant who is a homeowner and the respondent who is a builder had made applications to the Tribunals. In the builder's application, the Tribunal made an order that the homeowner was to pay the builder an amount of $21,500 and interest as calculated by the builder. The Tribunal also ordered the parties to file and serve written submission in the event that the parties did not agree in relation to the interest. In relation to the homeowner's application the Tribunal made an order that the builder pay the homeowner an amount of $9,685 and made work orders for incomplete and defective works. Internally appealable decisions 1. The decision of the Tribunal is an internally appealable decision and an appeal can be made as of right where there is an error of law, and with the leave of the appeal panel on specified grounds: see, s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 ('NCAT Act'). 2. The appellant has appealed on the basis of errors of law and seeks leave to appeal. The Appeal Error of Law 1. The appellant submits that, in circumstances where the Tribunal made a finding that the contract was on foot and was not validly terminated or abandoned, it was incorrect to make an order for outstanding monies to be paid immediately. 2. The appellant refers to the building contract and states he was only obliged to pay the amount of $21,500 which was ordered by the Tribunal when the works under the contract were "complete". The Tribunal found that there were incomplete works and defects and made an order for the respondent to complete and rectify works in the homeowner proceedings. 3. The appellant referred to cl 8 of the building contract that the works were not "complete" by reason, among other requirements of that provision, of the incomplete work and unremedied defects. See also cl 12 (progress payments are not an acceptance that work has been completed satisfactorily and the owner can withhold estimated value until bona fide dispute is resolved) and cl 15 (when work is complete in accord with cl 8, the owner must pay the remaining amount under the contract). 4. Consequentially, the appellant submits that there was no immediate obligation on him to pay the sum of $21,500 to the builder. The appellant submits that instead the Tribunal should have made an order that the outstanding amounts become payable once the defective and incomplete works were finalised. 5. At [14] and [15] of the reasons for decision, the Tribunal stated the following in relation to the builders claim: 14 First the builder submits at [38] that the owner has agreed that he owes the builder $21,500.00. The owner makes a concession at [7(a)] of his submissions in Reply that he is liable for the unpaid sum of $21,500.00 for progress claims under the contract. 15 Based on that concession the builder is entitled to an order in his favour in that amount. 1. The transcript reveals the following conversation occurred between the Senior Member and the legal representatives of the parties (page 2, from paragraph 15 onwards): Senior Member: alright and the builder you're claiming for some variations or what have you. Campbell: (legal representative for the homeowner): For unpaid works under the Contract and variations that's right. Senior Member: I think the owners admit that there is 21,400 or something of that nature: Wright: (legal representative for the builder) 21,500 indeed. 1. The appellant has not produced anything in pleadings, submissions or the transcript that they advanced a case which would indicate that their agreement to the amount outstanding was subject to terms of the contract such as cll 8, 12 and 15. They conceded the monies were owing. The appellant cannot conduct an alternative case on appeal. We are not satisfied that there is an error of law on this point. 2. It is for the reason just given that we don't regard this case as a suitable vehicle to deal with the line of authority, on which we were not addressed, as to whether or not the final contract balance had or could become due and owing until particular defects were remedied, with the consequence that no interest could accrue. Leave to Appeal 1. The appellant also seeks leave to appeal on the basis that the new evidence indicates that the builder was unlicensed and the Tribunal should not have made a work order. Moreover, the homeowner stated that the builder had not complied with the work orders. 2. As the decision the subject of appeal is a decision of the Tribunal in the Consumer and Commercial Division, the Appeal Panel may only grant leave to appeal where it 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). (see NCAT Act, Sch 4, cl 12) 1. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel stated at [76] that a substantial miscarriage of justice 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 circumstances in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance." 1. If the appellants satisfy the requirements of clause 12(1), the Appeal Panel must still consider whether it should exercise its discretion pursuant to s.80(2)(b) of the Act. 2. We find no grounds to allow leave to appeal. The appellant submitted that he had new evidence in relation to the licensing of the builder. However, the appellant could not demonstrate that was evidence which would not have been reasonably available to him at the time of hearing. The appellant admitted that the issue in relation to licensing was not raised at the hearing and the appellant was legally represented. We are not satisfied that evidence in relation to the status of the respondent's licensing was not available at the time of hearing or that there has been a substantial miscarriage of justice. 3. Further, it is noted that a renewal application has already been made to the Tribunal. Any issues in relation to non-compliance with work orders may be raised in the renewal. The appellant's remedy does not lie in an appeal but, rather, in a renewal application in accordance with cl 9 of sch 4 to the NCAT Act. 4. Accordingly, we do not grant leave to appeal and the appeal is dismissed. Costs 1. It is noted that the builder is seeking costs of the appeal. Accordingly, the Appeal Panel has made directions for submissions on costs. Orders 1. For the reasons provided we make the following orders: 1. Leave to appeal is refused. 2. The appeal is dismissed. 3. The respondent is to provide to the Appeal Panel and the appellant, either in person or by post, any submissions and documents in relation to the application for costs by 8 March 2021. 4. The appellant is to provide to the Appeal Panel and the respondent, either in person or by post, submissions and documents on costs by 15 March 2021. 5. Costs will be determined on the papers. If either party seeks to be heard in person, they should advise the Registry prior to 15 March 2021 setting out the reasons and the Appeal Panel will advise of the decision in due course. ********** 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 Amendments 03 March 2021 - Changes to dates in orders 3, 4 and 5 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: 03 March 2021