Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shivanbodhiselvan v Norwest Gateway Pty Ltd [2022] NSWCATAP 27 Hearing dates: 31 January 2022 Date of orders: 03 February 2022 Decision date: 03 February 2022 Jurisdiction: Appeal Panel Before: R C Titterton OAM, Senior Member E Bishop, Senior Member Decision: 1. To the extent that the appeal raises errors of law, the appeal is dismissed. 2. To the extent that the appeal raises errors other than errors of law, leave to appeal refused. Catchwords: BULIDING AND CONSTRUCTION – Failure to provide procedural fairness – Anshun estoppel – non question of principle - Leave to appeal – decision not fair and equitable – decision against the weight of the evidence - no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) – s 80(2)(b)) Home Building Act 1989 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 Andy and Patrick Floor Covering Pty Ltd t/as Silver Trading Timber Floor v Li [2018] NSWCATAP 172 Clements v Independent Indigenous Advisory Committee[2003] FCAFC 143 Collins v Urban [2014] NSWCATAP 17 Italiano v Carbone [2005] NSWCA 177 Mason v Hyland [2018] NSWCATAP 203 Pholi v Wearne [2014] NSWCATAP 78 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Tillainathan Shivanbodhiselvan (Appellant) Norwest Gateway Pty Ltd (Respondent) Representation: Appellant: self-represented Valerian Timbol, director (Respondent) File Number(s): 2021/00296541 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 25 November 2021 Before: G Ellis SC, Senior Member File Number(s): HB 21/32200 REASONS FOR DECISION Summary 1. The appellant Mr Shivanbodhiselvan appeals from a decision of the Consumer and Commercial Division of the Tribunal (Tribunal) of 23 September 2021 (Decision). 2. For the following reasons, we have decided to dismiss the appeal. Background and Decision of the Tribunal 1. It is appropriate to set out the history of the matter, including other proceedings involving both parties which were referred to in the parties' submissions. Much of this history is taken from the reasons for decision in matters HB 21/03979 and HB 21/03982 published on 20 October 2021. 2. On 4 September 2018, the parties entered into a written contract for the construction of the granny flat. The contract price was $121,000, subject to adjustment for variations; prime cost items; and provisional sum items. 3. From about March 2019 the parties fell into dispute about various issues, including the suspension of the licence of the private certifier who had been appointed; the delay in competing the works; the quality of the works and the variation claims of the respondent builder Norwest Gateway Pty Ltd (Norwest). 4. On 27 September 2019, Mr Shivanbodhiselvan filed proceedings HB 21/03979. He engaged Mr Mellick, a building consultant, to prepare an expert report. That expert report included a Scott Schedule and identified 40 items of defects. The items included the alfresco area; external walls; sewer stack; front door; dining room; kitchen; laundry; internal walls; bathroom; bedrooms; ensuite; main bathroom; garage and the driveway gate. 5. In summary, he sought orders for: 1. damages for the cost of rectifying defective work as assessed in the report and Scott Schedule of Mr Mellick (as revised by the updated "costs breakdown" document of Mr Mellick dated 9 February 2021); 2. consequential loss by reason of inability to rent out the granny flat. Mr Shivanbodhiselvan identified his claim at the hearing as being 103 weeks at $400 pw (total $41,200); and 3. costs. 1. The defects identified by Mr Mellick, although involving a large number of items, were minor in nature. There was nothing in Mr Mellick's report to indicate there were any defects affecting the structural integrity of the granny flat. 2. The Scott Schedule prepared by Mr Mellick contained a scope of works to rectify and cost of rectification. The total cost identified (for 40 items) was $31,373 (including 25% builder's margin and GST). 3. On 18 November 2019, Norwest filed a cross application HB 21/03982. Norwest sought orders for: 1. unpaid variations (Variations 2 and 4) in the total amount of $2,706. 2. interest on unpaid variations. 1. On 1 April 2020, both matters were listed for hearing at the Tribunal. The Tribunal: 1. found the work under the building contract had reached the stage of practical completion; 2. ordered Mr Shivanbodhiselvan to pay Norwest $6,512 by 15 April 2020. The amount was constituted by the final progress payment claim ($6,050) and an "agreed variation" ($462); 3. ordered Norwest to "commence work on outstanding works and maintenance items" on or before 22 April 2020; and 4. made orders for access. 1. After a number of subsequent directions hearings, on 28 September 2021 the Tribunal found that: 1. there were 21 items of "incomplete or defective" work. Norwest was ordered to rectify those defects; 2. Mr Shivanbodhiselvan had not established any other items were incomplete or defective; and 3. Norwest had failed to establish any claim for unpaid progress payments under the contract; variations; or unpaid work on a quantum meruit basis. 1. The Tribunal ordered Mr Shivanbodhiselvan to pay interest to Norwest on payments due under the contract in the amount of $379.39. 2. Mr Shivanbodhiselvan appealed the decision of the Tribunal to the Appeal Panel. 3. On 25 January 2021, the Appeal Panel upheld the appeal, and remitted the matter back to the Tribunal for hearing before a different Member. 4. The remitted matters were heard together on 14 April 2021 and 18 June 2021 by Senior Member Sarginson. The Tribunal published written reasons on 20 October 2021. In matter HB 21/03979 Norwest was ordered to pay Mr Shivanbodhiselvan $26,244.19. Matter HB 21/03982 was dismissed. 5. The Tribunal subsequently ordered Norwest to pay Mr Shivanbodhiselvan's costs in the lump sum amount of $6,600. 6. On 23 July 2021, Mr Shivanbodhiselvan filed Home Building Application HB 21/32200 (the subject of this appeal) with the Tribunal. He sought an order that Norwest pay him $24,629.00. The Decision under appeal 1. Written reasons were published on 23 September 2021. Those reasons are detailed. They commence with the Senior Member setting out the nature of the application, and then giving a brief history of the matter. The Senior Member then notes that Mr Shivanbodhiselvan cross-examined Mr Timbol, although "the questions asked of him did not materially add to the evidence". 2. The Senior Member then set out findings as to jurisdiction and the relevant statutory provisions contained in the Home Building Act 1989 (NSW) (HBA). 3. The Senior Member summarised the evidence and the submissions of each party. Mr Shivanbodhiselvan contended that the roof was not constructed correctly and that the work was undertaken by unlicensed and inexperienced workers. He sought a money order so that he could have the defects rectified by a roof plumber. 4. In his consideration of the evidence and the submissions the Senior Member found that there were ten reasons why he was not satisfied that Mr Shivanbodhiselvan had proved his case. In summary, those reasons were: 1. Mr Shivanbodhiselvan had no expert report; 2. although there was a quotation dated 13 May 2021 for the removal and replacement of the roof which suggested the roof needed to be replaced, that evidence was not persuasive; 3. the photos of the roof which were included in Mr Shivanbodhiselvan's evidence did not indicate when they were taken and did not reveal matters which were linked to the evidence of water penetration or any adverse consequence other than the cosmetic appearance of the roof when viewed by a person standing on that roof; 4. the photos taken inside the premises did not provide adequate support for the Mr Shivanbodhiselvan's case; 5. Norwest's evidence was that there were layers of protection between the roof and the interior surface of the premises, namely the foil space blanket and the insulation material, and that evidence was not challenged. There was no evidence which showed that a defect in the roof resulted in water getting to that foil space blanket or of the insulation material being wet in the region of any such defect, nor was there evidence of such water penetration causing damage to the plasterboard; 6. if there was water damage cause by the roof being defective then it would be expected that the plasterboard would swell and there was no evidence of that; 7. Mr Shivanbodhiselvan's suggestion that the work on the roof was done by tradespersons who did not hold the relevant licence overstated the licence requirement since the HBA only required Norwest to hold the relevant licence and not each person doing work on the roof; 8. Mr Shivanbodhiselvan's claim could have and should have been brought in the earlier proceedings: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45. Here the Tribunal noted that the fact that Mr Shivanbodhiselvan was aware in April 2020 of a possible roof leak suggested that that issue should been included in his previous application; 9. there had been periods of heavy rain since the roof was completed. If the roof was defective to the extent suggested by Mr Shivanbodhiselvan, being so defective as to require removal and replacement of the entire roof, then it would be expected that there would be multiple areas of water penetration, where there was only one area of an affected plasterboard which appeared to reflect moisture with a source that was internal rather than external; 10. Mr Shivanbodhiselvan did not deny that he had "installed bathroom provisions in the garage that [were] not fitted off" and that there were "several open cups of water around the property", both of which suggested elevated internal moisture levels that may give rise to mould. Notice of Appeal 1. Mr Shivanbodhiselvan filed a Notice of Appeal on 18 October 2021. The grounds of appeal are stated as follows (for convenience we have numbered each ground): [1] The member did not give me the opportunity to put forward/my position stating" We have limited time" and" We run the hearing by the clock and not by the calendar". [2] The member did not show procedural fairness, in particular, by ensuring that I had a reasonable opportunity to present my case by interjecting all the time. [3] The member did not apply the law equally. [4] The member did not conduct the proceedings in a manner that is patient and courteous. [5] The member was ill prepared to conduct the hearing as he did not have the correct telephone number for the Respondent. [6] The member made an error of law by quoting Port Melbourne Authority v Anshun Pty Ltd (1981) HCA 45 as Issue Estoppel does not apply to me, as the topic was raised twice with NCAT during previous proceedings. [7] Furthermore, no decision has been published to date with regards to my previous claim (file number HB 21/03979). 1. We note immediately that Ground [7] has been overtaken by events, the reasons for decision in matter HB 21/03979 having been published on 20 October 2021. 2. In his Notice of Appeal, Mr Shivanbodhiselvan seeks leave to appeal because: Member Ellis made an error of law quoting a case law that is irrelevant to my case. The member did not apply the law equally. He did not conduct the proceedings in a manner that is patient and courteous. The Member did not follow NCAT procedures and did not meet minimum standards. In his order, he has made contradicting statements (ie: Point 28: "The claim must be rejected is that it could and should have been raised in earlier proceedings" and point 29: 28 Sep 20 "At the first hearing of the previous application, that topic was raised"). 1. Mr Shivanbodhiselvan says that the Decision was not fair and equitable as: 1. the photos he submitted "were not allowed" as they did not have dates on them "but the undated photos submitted by Norwest were allowed"; 2. the Decision was made on "assumptions and theories, not on evidence and facts"; 3. the Tribunal relied wholly on evidence and submissions provided by Norwest, not from independent witnesses, including the report of an independent roof plumber provided by Mr Norwest. 1. Mr Shivanbodhiselvan says that the Decision was against the weight of the evidence, and that the Tribunal should have given more weight to "Reports and Quotations" of third parties. Mr Shivanbodhiselvan also says that, at a directions hearing on 19 August 2021, he was not ordered to provide a "witness report or a Scott schedule", and had he been ordered to do so, he would have. 2. Finally, Mr Shivanbodhiselvan says that significant new evidence is now available that was not reasonably available at the time of the hearing. Reply to Appeal 1. In its Reply to Appeal filed 22 November 2021, Norwest states: B. Reply to Appellant's Grounds of Appeal 1. There was more than enough time given by the Member for each party to present & support its case, There being only 1 real item of concern (surface mould the size of a hand print). 2 & 3 & 4. We believe the member gave more time for the applicant. 5. Irrelevant. 6. Not knowledgeable on Port Melbourne case, cannot comment. 7. Irrelevant on this new case that should have been included already in previous case. 4. Reply to Leave to Appeal Ample time was given to the Appellant to present his case including his malicious reports & photos that proved not relevant to causing a single item in dispute, the surface mould that was developed and grown over several months for lack of maintenance. It is clear that all this appellant wants to demand more monies from us by providing creative & malicious reports and grossly excessive costs of repairs that are relevant to the cause of this minor surface mould the size of a handprint. Nature of an appeal 1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other ground (s 80(2)(b)). A question of law 1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, without listing exhaustively possible questions of law, the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right. These include (but are not limited to): * whether there has been a failure by the Tribunal to provide proper reasons; * whether the Tribunal identified the wrong issue or asked the wrong question; * whether a wrong principle of law had been applied; * whether there was a failure to afford procedural fairness; * whether the Tribunal failed to take into account relevant (that is, mandatory) considerations; * whether the Tribunal took into account an irrelevant consideration; and * whether there was no evidence to support a finding of fact. Leave to appeal 1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if 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. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at [84(2)] that: 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. 1. Even if an appellant establishes that the appellant may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32]. Consideration Should the appeal be granted in relation to any error of law? 1. Mr Shivanbodhiselvan submits that he was denied procedural fairness at the hearing. A denial of procedural fairness is a question of law: Prendergast at [13](4); Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [8]. 2. He has particularised this in the various ways set out in his grounds [1] to [5] above. We will consider each of these grounds in turn. [1] The member did not give me the opportunity to put forward/my position stating" We have limited time" and" We run the hearing by the clock and not by the calendar". 1. The obligation of the Tribunal is to ensure that each party has a reasonable opportunity to be heard. It is often regrettable when a Member says words to the effect of there being limited time available to hear a matter. Nevertheless, having read Mr Shivanbodhiselvan's limited reproduction of the transcript of the hearing and having listened to the sound recording, we see no substance in this ground of appeal. It appears to us that the Member was attempting to manage the limited time available efficiently and attempting to ensure that both parties had appropriate time to make their submissions. 2. We also note that the remark "We run the hearing by the clock and not by the calendar" was in fact directed to Norwest, not to Mr Shivanbodhiselvan. [2] The member did not show procedural fairness, in particular, by ensuring that I had a reasonable opportunity to present my case by interjecting all the time. 1. Having read Mr Shivanbodhiselvan's limited reproduction of the transcript of the hearing and having listened to the sound recording, we reject this ground of appeal. The member interjected on a number of occasions while both parties were giving evidence or making submissions, and again we see no error or denial of procedural fairness in anything the Senior Member said or did. [3] The member did not apply the law equally. 1. We reject this submission. As the Senior Member carefully explained in his detailed reasons for decision, Mr Shivanbodhiselvan bore the onus of proof and it was up to Mr Shivanbodhiselvan to prove his case on the balance of probabilities. For the reasons given by the Senior Member, he was not satisfied on the evidence before him that Mr Shivanbodhiselvan had done so. [4] The member did not conduct the proceedings in a manner that is patient and courteous. 1. We also reject this submission. While the Senior Member did sound somewhat impatient on a couple of occasions during the course of the hearing, this was because, despite his clear directions to each of Mr Shivanbodhiselvan and Mr Timbol not to interrupt each other, they continued to do so. We see nothing untoward or unacceptable in the conduct of the Senior Member. [5] The member was ill prepared to conduct the hearing as he did not have the correct telephone number for the Respondent. 1. This submission is misconceived and is rejected. It is apparent that shortly before the hearing Norwest provided a different contact telephone number for the Senior Member to contact Mr Timbol. [6] The member made an error of law by quoting Port Melbourne Authority v Anshun Pty Ltd (1981) HCA 45 as Issue Estoppel does not apply to me, as the topic was raised twice with NCAT during previous proceedings. 1. We turn now to ground [6], which does not relate to procedural fairness, but does raise an error of law; namely that the Tribunal applied an incorrect principle of law. 2. In the Decision the Tribunal stated: 28. The eighth reason why this ground must be rejected is that it could have and should have been raised in the earlier proceedings, a principle explained by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45. Simply stated, that principle operates to prevent multiple, successive legal proceedings in respect of the same subject matter, namely alleged defects in building work [carried] out by [Norwest for Mr Shivanbodhiselvan]. 29. It is of assistance to set out a chronology of the relevant events, established by the evidence: Nov 18 Roof construction completed 12 Dec 10 Lock-up achieved Jan 19 Heavy rain but no evidence of water penetration Mar 10 Ceiling completed 24 Apr 20 Completion of work, applicant says he referred to "a possible roof leak" 28 8ep 20 At the first hearing of the previous application, that topic was raised 30 Sep 20 Orders made following that first hearing 27 Jan 21 Those orders were set aside 22 May 21 An email was sent by the applicant, suggesting a roof leak 18 Jun 21 Second hearing (rehearing) of previous application (decision reserved) 23 Jun 21 An email was sent to the applicant quoting a response from Mr Timbol. 30 The fact that [Mr Shivanbodhiselvan] was aware of a possible roof leak in April 2020 suggests that topic should have been included in his previous application. It is clear, from the inclusion of pages from a building inspection report by Houspect, that [Mr Shivanbodhiselvan] had an expert consider alleged defects in the building work carried out by [Norwest]. [Mr Shivanbodhiselvan] should have requested the author of that report to consider the roof. Indeed, if the author of that report was asked to consider defects in the roof, then there does not appear to be any explanation of why the roof was not included in that report. 1. We see no substance in Mr Shivanbodhiselvan's submission that issue estoppel does not apply to him. And his submission that the topic was raised twice with Tribunal during previous proceedings in fact undermines rather than supports his argument. 2. There is no reason why the principle of "Anshun estoppel" should not have been applied by the Tribunal. Indeed, it could be argued that the Member would have erred in law had he not applied it. 3. This ground of appeal must fail. Should leave be granted in relation to any other error? 1. The other errors identified by Mr Shivanbodhiselvan, for which leave is required, are that the Decision was not fair and equitable, against the weight of the evidence and that there is significant new evidence available that was not available at the time of the hearing. The Decision was not fair and equitable 1. As noted above, Mr Shivanbodhiselvan submitted that the Decision was not fair and equitable as: 1. the photos he submitted "were not allowed" as they did not have dates on them, "but the undated photos submitted by Norwest were allowed"; 2. the Decision was made on "assumptions and theories, not on evidence and facts"; 3. the Tribunal relied wholly on evidence and submissions provided by Norwest, not from independent witnesses, in circumstances where Mr Shivanbodhiselvan provided a report of an independent roof plumber. 1. We find no substance in any of these submissions. 2. As to (1), in relation to Mr Shivanbodhiselvan's photos, the Senior Member found that: 23. Thirdly, the photos of the roof which were included in [Mr Shivanbodhiselvan's] evidence (A39-62), which do not indicate when they were taken, and which are accompanied by Mr Shivanbodhiselvan's] comments, do not reveal matters which are linked to the evidence of water penetration or any adverse consequence other than the cosmetic appearance of the roof when view by a person standing on that roof. A number of those photos show dents, but such dents are likely to have been caused by walking on the roof away from the line of screws. However, a there is a photo which suggests the person taking the photos did that (A45), such dents cannot be attributed to the respondent. 1. Thus it is not correct to submit that the photos were rejected (not allowed) because they were undated. They were not rejected at all; they were considered by the Senior Member who found them not to be of probative value for the totality of the reasons expressed at [23] of the Decision, which included but was not limited to the photos being undated. 2. Nor was it correct as Mr Shivanbodhiselvan submitted that the Tribunal accepted that the undated photos submitted by Norwest were accepted ("allowed") by the Tribunal. The Tribunal did no such thing. 3. As to (2), the submission that the Decision was made on "assumptions and theories, not on evidence and facts", we reject that submission. For the very careful and detailed reasons set out in the Decision, the Tribunal did not find that Mr Shivanbodhiselvan had proved his case on the balance of probabilities. As the Appeal Panel has remarked on many occasions: A court or tribunal is informed and persuaded only by the presentation of evidence. Evidence is material which tends to persuade the court or tribunal of the truth or probability of the facts being alleged. Evidence may be photograph[ic], documentary or testimonial. But it will only succeed in persuading the tribunal if it appears as being truthful, reliable and cogent. In civil cases the standard or proof depends on the balance (or preponderance) of probabilities. This simply means that a party must prove that their case is more likely than not to be true. If the scales tip in favour of the party, however slight, they have proved their case. But if the probabilities are equal, they have failed to prove their case. ... 1. See Andy and Patrick Floor Covering Pty Ltd t/as Silver Trading Timber Floor v Li [2018] NSWCATAP 172 at [40]; Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATAP 137 at [18]; Mason v Hyland [2018] NSWCATAP 203 at [23] 2. As to (3), this submission will be considered in the next section of these reasons. The Decision was against the weight of the evidence 1. Mr Shivanbodhiselvan says that the Decision was against the weight of the evidence, and that the Tribunal should have given more weight to "Reports and Quotations" of third parties. 2. This was a reference to a quotation of Sydney Prestige Metal Roofing Pty Ltd dated 13 May 2021 (in the amount of $17,760 in relation to replacement of the roof) and a quotation of SPS Property Maintenance dated 21 May 2021 (in the amount of $2,893 in relation to replacement of the ceiling). 3. There is no substance in this submission. First of all, both quotations were listed in the evidence of the appellant identified by the Senior Member in the Decision (see [9]) and we infer that he considered those documents in coming to his decision. As to the quotation of 13 May 2021, this was specifically considered by the Senior Member at [22] as follows: Secondly, although there was a quotation dated 13 May 2021 for the removal and replacement of the roof(A63)which suggested the roof needed to be replaced, that evidence is not persuasive because(1) there is nothing to indicate the author, (2) there is nothing to indicate the author's qualifications and/or experience, (3)there is no reference to Procedural Direction 3,(4)the "pictures provided" are not identified,(5)the opinion is expressed by someone who has an incentive to find defects because it is contained in a quotation for $21,736, and (6)the amount shown in the quotation appears to be excessive having regard to the cost of the roofing materials provided by the respondent (R11). 1. As to the quotation for the replacement of the ceiling, we infer that the Senior Member did not consider it necessary to consider this evidence in writing his reasons in circumstances where he found at [24] that: … the photos taken inside the premises do not provide adequate support for the applicant's case. The area of the ceiling to which the applicant directed the Tribunal's attention (A74) showed mould on the interior surface, but no photo was provided of the other side of that plasterboard to show the cause of that mould was external not internal, despite it being readily accessible as it was close to the manhole (R19). There were two other two photos taken inside the premises. The photo at A72 shows a crack in a cornice but there is no indication of how that has been caused by an alleged defect in the roof. The photo at A73 is accompanied by a description which suggests it shows water leaking from the roof into the garage but that is not clear from the photo and is not the subject of any expert evidence. 1. As for a report of an independent roof plumber, there was no such report, only the quotation referred above. Significant new evidence now available that was not reasonably available at the time of the hearing. 1. Mr Shivanbodhiselvan says that at a directions hearing on 19 August 2021, he was not ordered to provide a "witness report of a Scott schedule" and, had he been ordered to do so, he would have. 2. True it is that in the directions of 19 August 2021, only Norwest was ordered to send to Mr Shivanbodhiselvan and the Tribunal a copy of all documents including expert reports, witness statements, Scott Schedule, on which it intended to rely at the hearing by 2 September 2021. 3. But that was because on 29 July 2021 Mr Shivanbodhiselvan was directed to: 1. … give to the respondent and send to the Tribunal any documents on which they intend to rely within 14 days from 29 July 2021. … 3. Documents MUST be given to the Tribunal in hard copy (paper form). The documents must be secured in a bundle, without plastic sleeves, with consecutive page numbers on each page from beginning to end. … Non-tenancy documents include - contracts, agreements, quotes, receipts, bills, written statements made by you and your witnesses and reports from experts or qualified specialists. (emphasis added) 1. In any event, there was no new evidence available at the appeal hearing (and which was not before the Tribunal) on which Mr Shivanbodhiselvan now wished to rely. 2. This ground of appeal also fails. Conclusion 1. We have considered each of Mr Shivanbodhiselvan's grounds of appeal which are errors other than errors of law. Applying the principles in Collins v Urban , we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result such that a grant of leave is warranted. Orders 1. The Appeal Panel orders: 1. To the extent that the appeal raises errors of law, the appeal is dismissed. 2. To the extent that the appeal raises errors other than errors of law, leave to appeal is refused. ********** 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: 03 February 2022