Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Liu v Dellapond Pty Ltd trading as Amazing Fencing [2022] NSWCATAP 64 Hearing dates: On the papers Date of orders: 14 March 2022 Decision date: 14 March 2022 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President AR Boxall, Senior Member (Legal) Decision: 1. Not to extend the time within which the Appellant may file her notice of appeal; 2. To dismiss the appeal Catchwords: APPEALS — Procedure — Time limits — Refusal of extension of time Legislation Cited: Civil and Administrative Tribunal Act 2013, s41 Civil and Administrative Tribunal Rules 2014, r25 Cases Cited: Gallo v Dawson [1990] HCA 30, 93 ALR 479 Hans v Building Professionals Board [2008] NSWADT 285 Jackamarra v Krakouer (1998) 195 CLR 516 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 Nanschild v Pratt [2011] NSWCA 85 Tomko v Palasty (No 2) (2007) 71 NSWLR 61 Texts Cited: NCAT Guideline 1 Internal Appeals dated November 2019 Category: Principal judgment Parties: Appellant: Zhi Ying Liu Respondent: Dellapond Pty Ltd trading as Amazing Fencing Representation: For the Appellant: On the papers For the Respondent: On the papers File Number(s): 2021/00309357 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 24 May 2021 Before: L Wilson, Senior Member File Number(s): GEN 21/05035 REASONS FOR DECISION 1. This is an appeal against a decision of the Tribunal made on 24 May 2021 in its Consumer and Commercial Division. 2. The decision under appeal concerned a claim by the Appellant against the Respondent, whom she had engaged to construct a new rear fence and a new side fence at her property at Minto NSW. The Tribunal dismissed the Appellant's claim and provided oral reasons for that decision. The Appellant provided a transcript of the hearing, including those oral reasons for decision. 3. The transcript discloses the Tribunal's approach to the claim, which was to identify by reference to a summary of issues provided by the Appellant herself, six particular issues which were in dispute. These appear from the transcript and the Appellant's original Home Building Application to be that: 1. in the case of the first and second issues, the Respondent had built the fences in the wrong locations which did not correspond to the property's boundary lines; and 2. in the cases of the third to sixth issues, the Respondent: 1. Failed to ensure that there were no gaps under the fence; 2. Failed to remove rubbish such as broken concrete and other rubbish resulting from the construction process; 3. Removed garden vegetation without authority; 4. Built at least part of the fences in such a way as to cause rainwater to build up beneath her house; and 5. In doing so, breached the implied statutory warranty under section 60 of the Australian Consumer Law that the services provided by the Respondent in constructing the fences would be rendered with due care and skill. 1. The Tribunal: 1. At minute 27:45 in the Transcript, dismissed the Appellant's claims, to the extent that they related to the location of the fences, on the basis that there was no evidence (such as a survey report) to prove that the Respondent had built the fences in incorrect locations; and 2. At 1 hour and 22 minutes into the transcript, dismissed the balance of the Appellant's claims on the basis, variously, that: 1. There was insufficient evidence to support them; and 2. In any event, certain identified provisions of the contract between the Appellant and the Respondent for the construction of the fence, to which the Tribunal specifically referred in its reasons, allocated the risks of which the Appellant complained to the Appellant rather than the Respondent. 1. Notice of the Tribunal's order to that effect was issued on 24 May 2021 and sent to the Appellant's email address on that date. 2. On 29 October 2021, the Appellant filed a Notice of Appeal with the Tribunal, which was accompanied by certain additional material. 3. On 19 November 2021, the Tribunal made certain directions concerning the conduct of the appeal, to the effect that: 1. The Respondent was to file and serve its reply by 24 November 2021; the Respondent did so on 16 November 2021; 2. The Appellant was by 10 December 2021 to file and serve the evidence from the original hearing on which she intended to rely, any additional evidence on which she intended to rely, her written submissions and a transcript of the hearing at first instance, including notably the oral reasons given; the Appellant did so on 9 December 2021; 3. The Respondent was to file and serve similar documents (if any) by 24 December 2021; the Respondent did not do so; 4. The Appellant was to file and serve her submissions in reply (if any) by 5 January 2022; the Appellant did not do so; 5. The questions of extending the time for filing the appeal, giving leave to appeal on grounds other than a question of law and the admission of fresh evidence are to be determined with the appeal; and 6. By consent, the appeal is to be determined on the papers without an oral hearing. 1. Rule 25 of the Civil and Administrative Tribunal Rules 2014 provides relevantly as follows: (4) Unless the Tribunal grants an extension under section 41 of the Act, an external or internal appeal must be lodged— (a) in the case where the enabling legislation specifies the period within which the appeal is to be made—within the period specified, or (b) in the case of an internal appeal against a decision made in residential proceedings—within 14 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the later), or (c) in any other case—within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later). (4A) For the purposes of subrule (4), the day on which reasons are given is the day on which reasons are first given, whether orally or in writing. 1. Notice of the decision under appeal was provided to the Appellant by email on 24 May 2021, as were the oral reasons for decision. The decision does not concern residential proceedings, and there is no other legislation of which the Appeal Panel is aware which extends the period of 28 days provided for in Rule 25(4)(c). Hence the Notice of Appeal should have been filed with the Tribunal by 21 June 2021 in order to satisfy the requirements of Rule 25(4)(c). It was not filed until over 4 months later, on 29 October 2021. 2. Under section 41 of the Civil and Administrative Tribunal Act 2013 it is open to the Tribunal to: extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. 1. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, a differently constituted appeal panel considered section 41, and indicated several principles relevant to its application: 1. The discretion to grant an extension of time is unfettered under that section but it must be exercised judicially. It must also be exercised having regard to the statutory command in s 36 of the Act that the guiding principle for the Act "is to facilitate the just, quick and cheap resolution of the real issue in the proceedings"; 2. 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]; 3. 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]; 4. Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: 1. The length of the delay; 2. The reason for the delay; 3. The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and 4. The extent of any prejudice suffered by the respondent (to the appeal), Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and 1. 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. Applying these considerations to the present appeal: 1. The delay is a substantial one, being over five times the prescribed period of 28 days. 2. No reason for the delay was provided by the Appellant. However, as part of the material appended to her Notice of Appeal was a survey report concerning her property issued by Rygate & Company Pty Limited, surveyors, on 9 June 2021 which discloses relevantly that one of the fences constructed by the Respondent stands up to 120 mm on adjoining land, and the other fence stands up to 210 mm on the subject land, the Appeal Panel surmises that the delay may be explicable, in part at least, by the time needed to obtain this report. Even so, a further 4 months and nearly three weeks inexplicably passed after the issue of this report before the Appellant filed her Notice of Appeal. 3. The Appellant's prospects of success are not good: 1. The survey report clearly provides the evidence as to the fences' non-conformity to the boundaries of the Appellant's land on which the member at first instance remarked in her oral reasons. Even if the Appeal Panel were inclined to allow the survey report to be admitted as new evidence in the appeal, however, to do so would only establish that physical non-conformity; the legal consequences as between the Appellant and the Respondent of the non-conformity would still fall to be determined by reference to Conditions 5 and 6 of the Terms and Conditions of Sale which the member at first instance found to have formed part of the contract between the Appellant and the Respondent. These relevantly place responsibility on the Appellant to identify and mark the exact location of the proposed fences, and there was no evidence to suggest that the Appellant had satisfied this obligation. 2. In any event: 1. the survey report was new evidence not usually allowed in an appeal: Hans v Building Professionals Board [2008] NSWADT 285; and 2. the Appellant could readily have obtained such a report for purposes of the hearing at first instance, but she failed do so. 1. Moreover, nothing in the Appellant's notice of appeal or submissions demonstrates any obvious error in the Tribunal's findings concerning the other issues considered by it. 1. The Respondent might not unreasonably claim that it would be unfair for the Appeal Panel to allow the Appellant to pursue her appeal in view of: 1. her leisurely approach to complying with the simple timing requirements established by the Civil and Administrative Tribunal Rules, and 2. the ready accessibility on the Tribunal's website at all relevant times of accurate information concerning appeal procedures and timing, which is summarised in NCAT Guideline 1 Internal Appeals dated November 2019. 1. For these reasons, the Tribunal has decided: 1. Not to extend the time within which the Appellant may file her notice of appeal; and 2. Accordingly, to dismiss the appeal. ********** 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: 14 March 2022