Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lanser v Halycon Super Pty Ltd [2022] NSWCATAP 169 Hearing dates: 16 May 2022 Date of orders: 24 May 2022 Decision date: 24 May 2022 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member G Curtin SC, Senior Member Decision: The appeal is dismissed. Catchwords: ADMINISTRATIVE LAW — particular administrative bodies — NSW Civil and Administrative Tribunal – hearing rule – opportunity to be heard – no such opportunity lost – no question of principle Legislation Cited: Home Building Act 1989 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Pejay Lanser (First Appellant) Self Made Construction Group Pty Ltd (Second Appellant) Halycon Super Pty Ltd (First Respondent) Mark Davy (Second Respondent) Representation: P Lanser (in person and on behalf of the Second Appellant) M Davy (in person and on behalf of the First Respondent) File Number(s): 2022/00050568 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 3 February 2022 Before: D Moss, General Member File Number(s): HB 21/37800 REASONS FOR DECISION 1. The appellants did not lodge or serve any evidence before the hearing conducted by the Tribunal and did not appear at the Tribunal hearing. A decision was made against them. 2. In this appeal they allege that they did not lodge or serve any evidence because they were misled by the respondents that they would not be pursuing the Tribunal proceedings and did not appear (by telephone) at the hearing because they were in an area of the Blue Mountains which did not have mobile telephone reception. They also assert that it is not possible to comply with one of the Tribunal's orders concerning the provision of a plumbing certificate. 3. As explained at greater length below, the appellants were not misled by the respondents, the fault for their non-appearance at the hearing was entirely theirs, and there is no evidence that it was not possible for them to comply with the Tribunal's order. 4. For the reasons that follow the appeal is dismissed. Background 1. The first appellant is a licensed builder who signed a contract with the second respondent to undertake certain bathroom and ensuite renovation works at residential premises at Toukley, NSW. 2. The second appellant is a company of which the first appellant is the sole director, secretary and sole shareholder, and which also had a building licence. It was the second appellant which took out insurance under the Home Building Act 1989 (NSW) for the renovation work. We shall refer to the first and second appellant collectively as the "builder" unless it is necessary to distinguish between them. 3. The Tribunal did not distinguish between the appellants at the hearing, presumably on the basis of an implied finding that, because it was the second appellant which took out the insurance and provided the quote, both appellants were parties to the building contract despite only the first appellant's name appearing on the contract document. 4. Equally, the Tribunal did not distinguish between the respondents at the hearing even though the second respondent signed the contract but the first respondent appears to have been the owner of the property. It will be sufficient in these reasons to simply refer to both respondents as the "owner". 5. No point was taken on appeal that the Tribunal's orders should not have been made against both appellants or in favour of both respondents. 6. On 25 August 2020, the builder provided a written contract to the owner by email. The email said that the written contract just needed a signature and should be returned to the builder for its records. 7. On 31 August 2020, the owner replied to the builder attaching a "signed contract page". 8. That "signed contract page" was a single page which contained some printed material and boxes for the provision of various details. Such details included, in handwriting, and amongst other things, the name, address, mobile telephone number, email address and license number of the first appellant, a brief description of the works, the contract price, and the following written notation: "Certification to be supplied for structural, water proofing, plumbing and drainage and any other relevant trades." 1. The builder commenced the works and the parties soon fell into dispute. 2. On 6 September 2021, the owner commenced proceedings in the Tribunal against the builder. The owner sought several orders including a money order and orders for the builder to provide certificates of compliance for the work done including the plumbing. 3. On 1 October 2021, the parties attended a conciliation hearing at the Tribunal, but the hearing was unsuccessful in assisting the parties to settle the dispute. 4. As a result of that lack of success the Tribunal made several directions for the preparation of the matter for hearing. The owner was to provide to the builder and the Tribunal a copy of all documents upon which he relied by 15 October 2021. The builder was directed to provide to the owner and the Tribunal a copy of all the documents upon which it relied by 29 October 2021. 5. The builder did not comply with the order to provide its documents by 29 October 2021. 6. On 5 November 2021 the Tribunal conducted a directions hearing. It is apparent that by that date the owner had provided his documents for the hearing to the Tribunal and to the builder. 7. On that date the Tribunal directed the builder to provide to the owner: "… a copy of all certificates related to the residential building work including … the plumbing certificate … on or before 7 November 2021." 1. We infer that that order was made by consent, it being made at a directions hearing (where contested matters on issues in dispute in the proceedings are not decided by the Tribunal) and following the service of the owner's documents. 2. The Tribunal also directed the builder to provide all the documents upon which it intended to rely at the hearing by 21 December 2021. 3. The builder did not comply with the order to provide its documents by 21 December 2021. 4. On 9 November 2021, the Tribunal set the matter down for hearing on 28 January 2022. 5. On the appeal the builder alleged that it met with the owner in-person on or about 28 December 2021 and reached agreement about the settlement of the dispute and the discontinuance of the Tribunal proceedings. 6. On 24 January 2022 at 8:36 am, the builder emailed the owner and said: "Sorry for the late reply and delay. Attached is a form to sign if you agree and certificates will be released within 1-2 business days. If there is something you would like to add please let me know in an email so I can go through and make changes if needed." 1. Attached to the email was a document which included terms which, if accepted, would have resolved the parties' dispute and the Tribunal proceedings. 2. On 25 January 2022 at 5:27 pm, the owner emailed the builder thanking it for its earlier email and saying, amongst other things: "Here is my offer if you wish to settle prior to the court case. If you accept this offer then there will be no judgement (sic) for this matter appearing on your license." 1. Approximately one hour later on 25 January 2022, the builder sent a text message to the owner saying: "I'm not agreeing to your terms … Happy to proceed through court." 1. Three days later, on 28 January 2020, the Tribunal conducted the hearing of the proceedings by telephone. The builder did not appear at that hearing. 2. The Tribunal considered the evidence provided by the owner and made a number of orders including orders that the builder pay the owner $9,768.19 and to provide a copy of a plumbing certificate on or before 18 February 2022. The Tribunal said that if the plumbing certificate was not provided on the due date the owner was granted leave to renew the application by filing the prescribed form. 3. The builder appeals from those two orders. 4. The builder's grounds of appeal were: 1. the parties reached agreement (before the Tribunal hearing) regarding a possible settlement of their disputes, and the owner did not advise the builder that the owner would be continuing his case in the Tribunal; 2. it was not possible to provide the plumbing certificate. Ground 1 1. The builder alleged an oral agreement was reached in late December 2021, or a written agreement was reached on or about 24 January 2022, to the effect that their disputes were settled. 2. As to the oral agreement, the builder led no evidence on this appeal to that effect. 3. As to the written agreement, the builder says it is found in its email to the owner of 24 January 2022 followed by a lack of any contradiction by the owner. 4. We dismiss this ground for three reasons. 5. First, there was no evidence of any oral agreement and so that argument must be dismissed. 6. Second, the builder's email of 24 January 2022 was followed by the owner's emailed counter-offer of 25 January 2022, which itself was followed by the builder's text message an hour later making clear that the builder rejected the counter-offer and indicating the builder was happy for the matter to proceed through court (being the Tribunal). Therefore, there was no written agreement as alleged by the builder. 7. Third, the builder said it had prepared its documents for hearing but not had time to send its material to the Tribunal after the communications of 24 and 25 January 2022. 8. We do not accept this explanation. The builder had been given a little over 16 weeks from the directions made on 1 October 2021 to provide its material to the Tribunal and the owner and had failed to do so. It could have emailed that material to the Tribunal and the owner on 26 or 27 January 2022 had it been so inclined but did not do so. 9. On the day of the hearing the builder said it did not have mobile reception where it was working in the Blue Mountains. That was no excuse which could assist it on this appeal. It was for the builder to place itself in a position to attend the hearing by telephone, and it was its responsibility to be in a place with mobile reception if it chose that type of phone to attend the telephone hearing. 10. Ground 1 must be dismissed. Ground 2 1. Ground 2 was raised orally for the first time on the appeal, however we permitted some argument on the point against the event it raised some matter of practical impossibility in complying with the Tribunal's order. 2. In the event, after hearing submissions, we were not persuaded there was any substance to the point. 3. There was no evidence given to us by the builder (or served on the owner prior to the appeal) of any impediment in complying with the Tribunal's order (that is, there was no evidence of anything which would make it impossible for the builder to provide the certificate). 4. Further, the builder had agreed to provide such a certificate in the contract (see [9] above) and the builder had consented to an order that such a certificate be provided at the directions hearing of 5 November 2021 (see [15]-[17] above). We doubt the builder would have agreed to provide such a certificate in the contract and agreed to the consent order were the certificate impossible to provide. 5. For those reasons we do not accept the submission that it is impossible to provide the plumbing certificate ordered to be provided by the Tribunal. 6. Ground 2 must be dismissed. Orders 1. We make the following order: 1. The appeal 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: 24 May 2022