Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Esteban v 2M Projects Pty Ltd [2021] NSWCATAP 137 Hearing dates: On the papers Date of orders: 17 May 2021 Decision date: 17 May 2021 Jurisdiction: Appeal Panel Before: Cowdroy AO QC ADCJ, Principal Member L Wilson, Senior Member Decision: The Appeal Panel orders that: (1) Leave to appeal the decision of the Tribunal dated 7 December 2020 is refused; (2) The appeal is otherwise dismissed. Catchwords: APPEALS — leave to appeal — appeal from exercise of discretion — miscalculation of claim — no factual error — decision not unreasonable — leave to appeal refused BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — building dispute Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 House v The King (1936) 55 CLR 499; [1936] HCA 40 Texts Cited: Nil Category: Principal judgment Parties: Melanie Esteban (First Appellant) Alfredo Esteban (Second Appellant) 2M Projects Pty Ltd (Respondent) Representation: Solicitors: Appellants (self-represented) Respondent (self-represented) File Number(s): 2020/00371233 (AP 20/52221) Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not reported Date of Decision: 7 December 2020 Before: G Meadows, Senior Member File Number(s): HB 17/52254 REASONS FOR DECISION Introduction 1. By Notice of Appeal filed on 11 December 2020, the appellants seek to appeal a decision of the Tribunal made on 7 December 2020. Facts 1. The original dispute between the parties arose out of a home building contract. The proceedings were heard on 11 and 12 February 2019 and extensive reasons were handed down on 7 January 2020. In consequence the Tribunal made the following orders: (1) In matter number HB 17/52254, Melanie Esteban and Alfredo Esteban are to pay 2M Projects Pty Ltd the sum of $53,508.12 within 28 days of the date of these orders. (2) In matter number HB 18/14278, 2M Projects Pty Ltd is to pay Melanie Esteban and Alfredo Esteban the sum of $21,458.17 within 28 days of the date of these orders. 1. On 7 December 2020 the Tribunal made the following order: (1) Pursuant to section 63(1) and (3)(b) of the Civil and Administrative Tribunal Act 2013, the orders made on 6 January 2020 [sic] are amended by adding new Order 3 as follows: "Melanie and Fred Esteban are to release the remaining 50% of the Security Deposit in the sum of $19,120.64 to 2M Projects Pty Ltd immediately." 1. The proceedings required expert evidence on a variety of defects in the building work and adjustments arising out of the claims and counterclaims made by each party. In respect of one item, described at [112] of the reasons for decision under review as "Fence Hire", the amount of $276.93 was allowed. 2. It appears that many months after the principal decision was delivered on 7 January 2020, the appellants realised that they had paid $4,700 for fence hire which they had omitted to offset against any liability to the respondents. Accordingly they sought to have the decision amended so that this amount was included, but giving credit for the amount of $276.93 which was allowed in the calculations. 3. When the matter came before the Tribunal for clarification of the order referred to at [3] above, an application was made by the first named appellant which appears in the reasons contained in the Notice of Order dated 7 December 2020 as follows: "Mrs Esteban today (and in her earlier submissions) raised the allegation that the financial calculations in my original decision were incorrect, in that my decision failed to take into account the claim by the owners that they were entitled to offset the allowance for fencing by the original charge of $4,700.00 made by the builder and paid for by the owners in one of the progress claims which were fully paid by the owners. It was not until later, it is alleged, that the owners realised their entitlement to a refund. I cannot see any reference to this issue in my original decision and reasons and I cannot recall whether the issue was considered during the hearing. In the circumstances I am not able to find this is an obvious error of the type capable of correction under section 63 of the CAT Act. In my opinion the builder was not prepared to discuss this issue today in any case. On the face of my reasons dated 06/01/2020 [sic] I consider there is no evidence of a financial miscalculation otherwise. For those reasons I decline to determine the issue of the fencing charge today." 1. The appellants challenge such findings in this appeal. Grounds of appeal 1. The grounds of appeal are stated as follows: "2M Projects supplied 2 temporary fence panels for the duration of the build. We were charged $4,700 for the fence hire. Both building experts agreed and noted in their reports that the cost for hire of 2 panels of temporary fence for the duration of the build amounted to $276.93. We had paid the amount of $4,700 to 2M Projects. We raised this overpayment in the initial hearing of 11th and 12th February 2019. It is noted and agreed upon in the Scott Schedule. It is noted in the Members Determination of 7th January 2020, however the amount payable and amount due for reimbursement have been recorded incorrectly and we seek to have this rectified. …" 1. The appellants claim that the Appeal Panel should make the following orders: "2M Projects to reimburse us the amount due of $4,423.07. Calculated as follows: Fence Hire charged to Estebans: $4,700.00 Fence Hire amount deemed payable by Experts and NCAT Member: $276.93 Difference between what we paid ($4,700) and what was in fact agreed by all parties ($276.93): $4,432.07 We seek an order to have the corrected amount of $4,432.07 paid to us by 2M Projects." Observations 1. This is an internal appeal brought under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the Act"). Section 80(2) relevantly provides: 80 Making of internal appeals ... (2) Any internal appeal may be made— (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. … 1. It is apparent from the Notice of Appeal that no issue of law is raised on this appeal. Accordingly it is necessary for leave to be granted to bring the appeal. Part 6 of Schedule 4 to the Act relevantly provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision 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). Note— Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. … 1. In Collins v Urban [2014] NSWCATAP 17, the Appeal Panel identified the principles which will guide an Appeal Panel in determining whether leave to appeal should be granted. At [84] the Appeal Panel held: "… (1) 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: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there." Discretion of Tribunal 1. A decision of a Tribunal member is discretionary. A discretionary judgment can be set aside where it is established that the circumstances referred to in House v The King (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40 are made out. That is, it must be established that the decision maker has taken into account an irrelevant consideration or omitted to take into account a relevant consideration, or has made a decision which is against the weight of the evidence, or has mistaken the evidence. Their Honours said: "If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance." 1. When the proceedings came before the Tribunal on 7 December 2020, it is plain that the Tribunal did not consider that there was any evidence of a financial miscalculation. The calculations which are contained in the decision handed down on 7 January 2020 embody adjustments which the Tribunal considered were appropriate in respect of the claims of each of the parties. It is now not possible to determine whether the claim of $4,700 was ever submitted for inclusion in the appellants' claim or was considered by the Tribunal. The Senior Member acknowledges there is no reference to this issue in the decision and that he could not recall the matter being raised. He said that in the circumstances he was not able to make any correction under s 63 of the Act which empowers the Tribunal to correct a decision where there has been an obvious error. However, what is very clear from the Notice of Order is that the Senior Member considered that there was no evidence of a financial miscalculation as alleged and for this reason declined to determine the issue of the fencing charge. 2. The Appeal Panel is not able to discern any injustice which is reasonably clear, or that there was any factual error, or that the decision was arrived at unreasonably. If the issue of the $4,700 fencing payment was never raised, it is now too late for that matter to be considered and it does not suggest that there is any error in the decision of the Senior Member. 3. It follows that leave to bring the appeal is not granted. Orders 1. The Appeal Panel orders that: 1. Leave to appeal the decision of the Tribunal dated 7 December 2020 is refused; 2. The appeal is otherwise 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: 17 May 2021