Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pearce v The Living Property Group Pty Ltd [2021] NSWCATAP 233 Hearing dates: 12 July 2021 Date of orders: 4 August 2021 Decision date: 04 August 2021 Jurisdiction: Appeal Panel Before: Armstrong J, President T Simon, Principal Member Decision: (1) An extension of time for the making of the appeal is refused. (2) The appeal is dismissed. (3) The application for costs is dismissed. Catchwords: CONSUMER LAW – home building – procedural fairness – appeal on a question of law – extension of time to appeal – legal representation - costs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulations 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Clements v Independent Indigenous Advisory Committee (2003) FCAFC 143; 131 FCR 28 Italiano v Carbone [2005] NSWCA 177 Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 Texts Cited: None cited Category: Principal judgment Parties: Chris Pearce t/as C. R. Pearce Heritage Carpentry Services (Appellant) The Living Property Group Pty Ltd (Respondent) Representation: Counsel: Wulf P (Respondent) Solicitors: Appellant (Self Represented) File Number(s): 2021/00134862 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 17 March 2021 Before: N Vrabac, Senior Member File Number(s): GEN 20/47232 REASONS FOR DECISION 1. This appeal arises out of a decision in the Consumer and Commercial Division. Background 1. The appellant appealed a decision of the Tribunal made on 17 March 2021. The initial application made to the Tribunal was made by the respondent to this appeal. The application stated that the appellant had supplied the respondent with a quote to strip and paint an aluminium window frame at $450 (excluding GST). The respondent alleged that the work resulted in the frame being damaged and that the window was not of an acceptable standard. The respondent sought an order for an amount of $1,614.80 including GST for the supply and installation of a new window, and the NCAT application fee of $104. The respondent had also been seeking an order that they did not have to pay an amount of $3,282.20 for an invoice rendered by the appellant. 2. The matter came before the Tribunal on 17 March 2021, and the Tribunal made orders for the appellant to pay the respondent an amount of $1,614.80. Documents 1. The Appeal Panel received the following submissions and documents relating to the Appeal from the parties. 1. Notice of Appeal received from the appellant on 13 May 2021, together with an application for stay of the original decision pending Appeal (including documents and submissions). 2. Further submissions received from the appellant on 18 and 19 May 2021. 3. Reply to the appeal received 24 May 2021 (including documents and submissions). 4. Submissions and documents received from the appellant on 15 June 2021. 5. Submissions received from the respondent 30 June 2021. 1. The Appeal Panel also had before it a copy of the directions that have been made by the Appeal Panel, a copy of the original orders made by the Tribunal on 17 March 2021 and a copy of the application that was made to the Tribunal on 11 November 2021 2. It is noted that on 26 May 2021 the Appeal Panel dismissed the application for the stay. Internally appealable decisions 1. The decision of the Tribunal is an internally appealable decision; 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 (NSW) (NCAT Act). 2. The appellant has appealed on the basis of errors of law and seeks leave to appeal. Extension of Time 1. The Notice of Appeal was lodged outside the 28-day time period specified in cl 25(4)(b) of the Civil and Administrative Tribunal Rules 2014 (NCAT Rules). The Appeal Panel has power to extend time under s 41 of the NCAT Act. 2. The principles on which an extension of time would be granted to bring an appeal were set out by the Appeal Panel in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 at [21]-[22]. The matters to consider include: 1. The length of the delay; 2. The reason for the delay; and 3. The prospects of success. 1. The appeal had been lodged 29 days out of time (from when the orders were made). The respondent stated that the Tribunal advised the appellant at the conclusion of hearing that there are time limitations in which to appeal. The appellant, who was unrepresented both at the initial hearing and in the appeal, stated that he had delayed in making the application because, even now, he had not received a copy of the orders or reasons. He acknowledged that he knew that orders were made requiring him to pay the money, and the Tribunal had advised him orally of the orders that the Tribunal was making at hearing. 2. We put to the appellant that the orders before us indicated that they had been sent by email. The appellant stated that he had not received the orders. However, the appellant was clearly on notice that the orders were being made and presumably by the time he appealed he was on notice because the appeal and stay applications refer to the orders exactly as they were made. Moreover, on 26 May 2021 the Appeal Panel directed: 2. The appellant is to make a request, in writing, for written reasons for the decision the subject of the appeal, by 31 May 2021. 1. The appellant was also ordered to provide: 3(d). The sound recording or transcript of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on and a typed copy of the relevant parts. 1. The appellant conceded at the appeal hearing that he never made the request for written reasons, did not seek a copy of the orders from the Tribunal and did not request copy of the sound recording or transcript. 2. The appellant stated he had not requested the reasons because he was waiting to receive a copy of the orders. However, that is not a satisfactory explanation in circumstances where he had been directed by the Appeal Panel at direction to obtain the written reasons and failed to comply. 3. We have dealt with each of the grounds raised in the appeal in turn below, and we find that, in the circumstances, the appeal has little prospect of success. The Appeal 1. The appellant was unrepresented and we have adopted the position as was stated by an Appeal Panel in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [12]: "In circumstances where the appellants are not legally represented, it is apposite for the Tribunal to approach the issue by looking at the grounds of appeal generally. It is necessary for the Appeal Panel to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations that might arise to the respondent." 1. We have dealt with each of the grounds, as we have understood them, in turn. 2. It should be noted that in relation to the grounds of appeal more broadly, the appellant's grounds largely fail because the failure to comply with the Appeal Panel directions to request written reasons, provide the sound recording or a transcript has meant it is impossible for us to know what was considered by the Tribunal and the reasons for the decision made. Disposal of the Existing Window 1. The appellant asserts that the respondent stated to the Tribunal that existing windows had been disposed of and as a result he was denied the opportunity for an expert to investigate the damage or rectify the works in accordance with the Home Building Act 1989 (NSW) (HBA), s 48MA. 2. These works would not appear to be residential building works, and this matter does not appear to be a matter which falls under the HBA. The appellant acknowledged that the reasonable value of the works undertaken by him were under $5,000. Work for which the reasonable market cost of the labour and materials does not exceed $5,000 (being the amount prescribed in the Civil and Administrative Tribunal Regulation 2013 (NSW)) is excluded from the HBA – see definition of residential building works: HBA, Sch 1, cl 2(3)(a). 3. The appellant's submissions regarding the preferred outcome under the HBA and investigation of the works by a Fair Trading building inspector do not apply in this matter as this was a consumer application made under the Fair Trading Act 1987 (NSW) (FTA). The FTA does not have identical provisions relating to the preferred outcome or the dispute resolution process by a Fair Trading building inspector. In those circumstances the appellant's submissions are misconceived and are a misapprehension of the applicable consumer claims regime under the FTA. On that basis, this ground raised by the appellant must fail. 4. The appellant also raised an error of law on the basis that there were no reasons provided for not allowing the appellant to re-install the old window. Given that the appellant failed to request the reasons, we cannot know what the Tribunal decided in relation to the reinstallation of the window or whether there was indeed an inadequacy of reasons. This ground must also fail. 5. The appellant further submitted that the Tribunal did not properly identify the scope of the works agreed between the parties, or the required method of rectification, or properly analyse the cost of rectification. The appellant alleges that the respondent, or its legal representative, made untrue statements during the hearing with respect to the disposal of the window. The respondent submitted that during the hearing there was reference to the respondent's evidence with respect to the window and its disposal, and that the Tribunal spent some time reviewing the evidence and made the decision consistent with the evidence presented by the respondent and agreed to by the appellant. Again, in the absence of any reasons or transcript, those assertions cannot be supported by the appellant and there is nothing before us which would demonstrate such error occurred. Not allowing expert evidence 1. The appellant alleges that the respondent did not allow the appellant's expert insurance investigator to inspect the windows. The appellant stated that the refusal to not allow access for an expert report put him at a significant disadvantage in the proceedings. The appellant relies on an email they sent on 29 January 2021 at 3:51am: "Ms. M Jacquet. Have I your permission to name you as the respondent in the claim form to be submitted to my insurance company. They want to send an investigator for me to use the evidence on false claims, fraud, and coercion he collects in our upcoming court appearance. C Pearce." 1. The appellant also asserts that the Tribunal should have accepted his evidence in relation to the supply and installation of the new window, and that what the Tribunal relied on to come to its decision was not like for like. 2. The respondent concedes they did not respond to the email, but submits that at no material time did the appellant actually request access for an expert to investigate the window for the purpose of the proceedings. They state that the email asks for the respondent's permission to name them as a respondent in the insurance claim and that in any case the matter now being raised by the appellant was fully ventilated at the Tribunal hearing. 3. Again, without a transcript or reasons, we do not know how either of these issues was dealt with at the hearing and what weight, if any, was given to the email or the evidence in relation to quantum and why. In those circumstances, these grounds must also fail. Legal Representation 1. The appellant submits that the respondent should not have been allowed legal representation. 2. The respondent submits the following chronology in relation to the request for legal representation. * On 28 January 2021, the respondent emailed the Registry for leave for legal representation. On the same day, the Tribunal replied to the respondent advising that they must contact the appellant and ask for the appellant's views on legal representation. * On 31 January 2021, the respondent emailed the appellant seeking his views on leave for legal representation and requesting his reply within 72 hours. * On 2 February 2021, the appellant replied to the respondent stating: "M J. you should read the Civil and Administrative Tribunal Act 2013 No 2 Part 4, Div. 5,60, (1) (3) a, e, and follow the directions of Ms. E. Eftimiou. The Tribunal Member. C .P" * On 3 February 2021, the Respondent replied to the appellant again requesting the appellant's permission to be legally represented. On 4 February 2021, the appellant replied to the respondent stating: "need time to check your ref to section and rules" * On 4 February 2021, after the appellant had not consented to the leave for legal representation, the respondent emailed the Tribunal advising that it had followed the Tribunal's directions. * On 8 February 2021, the Tribunal granted leave for the respondent to be legally represented. 1. The respondent also states that the Tribunal refused an adjournment to seek legal advice because the appellant had continually indicated throughout his evidence that he had previously obtained legal advice. 2. Section 45(1)(b)(ii) of the NCAT Act allows the Tribunal to grant leave for representation by an Australian legal practitioner. 3. Given that the appellant did not make any submissions to the Tribunal indicating the objection to leave for the legal representation, and has not identified the error the Tribunal fell in by allowing leave for legal representation, we are not satisfied that such error has occurred. It is noted that no costs order was made against the respondent in the Tribunal proceedings. Denial of procedural fairness 1. This ground of appeal raises the question of whether the appellant was denied procedural fairness, and we are satisfied that this raises a question of law: Clements v Independent Indigenous Advisory Committee (2003) FCAFC 143; 131 FCR 28 at [8]; Italiano v Carbone [2005] NSWCA 177 at [5]. 2. The appellant submits that the respondent provided its documents late. The Tribunal had directed that the respondent provide its evidence by 18 January 2021, and the respondent acknowledged that the evidence was not provided until 23 January 2021 and was served 5 days late. The appellant further stated that the respondent emailed the documents to the Tribunal on 25 January 2021 and that the material was rejected by the Registry. 3. The respondent's late filing of evidence was not raised during the hearing, and the appellant did not seek to have the respondent's evidence struck out due to the delay in filing, and instead sought to rely on the evidence to support his case. 4. We have no transcript identifying how this issue was dealt with at the hearing or whether it was even raised by the appellant and on that basis we cannot find a denial of procedural fairness. 5. Further, the appellant submitted that he received the documents 10 to 15 days late. In any case, the appellant had almost 5 weeks until the hearing to review the material. It is difficult to see how, in those circumstances, the acceptance of the late documents would have caused disadvantage to the appellant, and the appellant had ample time to respond to the evidence. 6. The appellant also asserts that the respondent's legal representative was allowed an uninterrupted opportunity to put forward the respondent's case and that the appellant was constantly interrupted. The respondent made submissions that the Tribunal allowed the respondent to make its case in the normal way and the matter was heard as would be expected. 7. Again we have no sound recording or transcript before us to demonstrate such error. Conclusion 1. As was explained to the appellant at the appeal hearing, an appeal is not an opportunity to run the case again. 2. Having considered the grounds of appeal, we are not satisfied that there was an error of law or grounds which would amount to a substantial miscarriage of justice and warrant leave to appeal. Having considered the delay in the making of the appeal, the reasons provided for the delay, the failure of the appellant to comply with the Appeal Panel directions, and in particular the weak prospects of success of the appeal, we are not satisfied to extend time for the making of the appeal. 3. Accordingly, we do not grant leave to appeal and the appeal is dismissed. Costs 1. The respondent sought costs in the event that they were successful. Both parties were provided with the opportunity to address the Appeal Panel in relation to the costs application. On 26 May 2021 the Appeal Panel made an order that the appellant had leave to be legally represented on the condition that it could not recover legal costs of the appeal. 2. Rule 38A of the NCAT Rules states that the Appeal Panel for an internal appeal must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal. 3. In that regard the applicable section, s 60(1) of the NCAT Act, requires that each party bear their own costs. However, pursuant to s 60(2) of the NCAT Act, a costs order can be made if "special circumstances" are established. 4. Rule 38 of the NCAT Rules states that, despite section 60 of the Act, the Tribunal may award costs in proceedings in the absence of special circumstances warranting such an award if the amount claimed or in dispute in the proceedings is more than $30,000. 5. The amount in dispute in these appeals was less than $30,000. 6. Section 60(3) of the NCAT Act sets out a non-exhaustive list of matter that the Tribunal may have regard to when determining whether there are special circumstances warranting an award of costs: (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. 1. In Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 the Appeal Panel found at [11] that "special circumstances" are "circumstances that that are out of the ordinary" but the circumstances do not have to be "extraordinary or exceptional". 2. The respondent stated that a costs order should be made in their favour because, despite the order for leave to be made on the conditional basis, the appellant had subsequently proceeded to disregard the Tribunal directions made. The appellant opposes the making of a costs order on the basis that he had opposed leave for legal representation. 3. Weighing up the discretion we are not satisfied that we should grant costs in this matter. While we accept that the decision of the Appeal Panel granting leave for legal representation on condition is an interlocutory decision and we could set aside the decision, we are not satisfied in these proceedings that there is sufficient reason to do so. 4. The respondent took no steps prior to the conclusion of the matter and the making of the application for costs to challenge the condition that leave be granted on condition that they would not seek to recover legal costs in the appeal. The decision of the Appeal Panel granting leave on condition also indicates that oral reasons were given for that decision. Those oral reasons have not been provided. 5. Taking that into consideration, and the submissions of the parties, we are not satisfied that in this case there are special circumstances which warrant a costs order. The respondent was on notice that its grant of legal representation was subject to the condition that it not seek costs. The respondent could have, knowing that the appellant had not provided the written reasons or transcript, chosen to represent itself. The amount in dispute was $1,614.80 and the appeal was not complex either in law or fact. The respondent chose to proceed with legal representation and without challenge to the condition on leave for a legal representative to appear in the appeal on its behalf. We are satisfied that there are no special circumstances under s 60 of the NCAT ACT which justify an award of costs in favour of the respondent. Orders 1. We make the following orders: 1. An extension of time for the making of the appeal is refused. 2. The appeal is dismissed. 3. The application for costs 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: 04 August 2021