Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nelson v Ivy Landscapes Pty Ltd [2022] NSWCATAP 210 Hearing dates: 20 June 2022 Date of orders: 28 June 2022 Decision date: 28 June 2022 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member D Goldstein, Senior Member Decision: 1. Leave to appeal refused. 2. Order 1 made by the Tribunal on 15 March 2022 is varied by substituting the date "12 August 2022" for the date "02-May-2022". Catchwords: APPEAL - NSW Civil and Administrative Tribunal – internal appeal – application for leave to appeal pursuant to Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 12(1)(c) – new evidence not proved to have not been reasonably available at the time of the Tribunal hearing – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36(3), 38(5)(c), Sch 4 cl 12(1)(c) Home Building Act 1989 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Texts Cited: Nil Category: Principal judgment Parties: David Nelson (Appellant) Ivy Landscapes Pty Ltd (Respondent) Representation: Appellant (Self-represented) T Woods (Director of the Respondent) File Number(s): 2022/00114405 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 15 March 2022 Before: J Searson, General Member File Number(s): HB 21/23583 REASONS FOR DECISION 1. This is an appeal by a sub-contractor from orders of the Tribunal requiring him to carry out certain rectification work arising out of a contract the sub-contractor entered into with a landscaper for the doing of concreting work at residential premises at Cranebrook, NSW. 2. The Tribunal (telephone) hearing proceeded in the absence of the appellant, he having hung up on the Tribunal when it made telephone contact with him on the day of the hearing. It also proceeded in the absence of any evidence (either documentary or testimonial) having been lodged or served by the appellant. The Tribunal's decision was based on the documentary and testimonial evidence lodged and served by the homeowners and the respondent. 3. In substance, the appellant wished to do on this appeal what he was given the opportunity to do before and at the hearing before the Tribunal, but which opportunity he did not take up, namely, to lead evidence of his own and to dispute the evidence of the homeowners and the respondent. 4. As that evidence was reasonably available to the appellant at the time of the Tribunal hearing leave to appeal must be refused. Background 1. The dispute arose out of landscaping and concreting works (which were completed) under a contract dated 30 June 2019 between the homeowners and the respondent landscaper. 2. In turn, the respondent had sub-contracted with the appellant to undertake the concreting works. 3. The homeowners' complaints were that the concreting works were defective. 4. The homeowners filed an application in the Tribunal on 20 March 2021 seeking orders against respondent. The respondent filed an application on 30 May 2021 seeking orders against the appellant. 5. The Tribunal had earlier made orders for the parties to lodge with the Tribunal and serve on the other parties the evidence upon which they wished to rely at the forthcoming Tribunal hearing. The homeowners and the respondent complied with that direction, the appellant did not. 6. Both matters were heard together by telephone on 15 March 2022. 7. The homeowners relied on a bundle of documents lodged with the Tribunal and served on the respondent, and one of them gave oral evidence. The homeowners relied principally on the report of Roland Optland, a NSW Fair Trading Building Inspector, dated 13 November 2020 to prove their claim. The homeowners also relied on a Rectification Order dated 23 September 2020 issued by NSW Fair Trading. 8. The respondent relied on a number of documents that were lodged with the Tribunal and served on the appellant including the Rectification Order. Mr Woods, a director of the respondent, gave oral evidence on behalf of the respondent. 9. In relation to the appellant the Tribunal said: "13 There was no appearance of Mr Nelson (the concreter) at the hearing. Mr Nelson was contacted by the Tribunal at the commencement of the hearing but claimed he had not received notification of the hearing and then hung up. He was unable to be contacted further after this time. Mr Nelson had not filed any documents in the landscaper's matter. 14 The Tribunal considered that it was in the interests of justice to proceed on an ex-parte basis in the landscaper's matter given the amount of time that this matter had been before the Tribunal and also was satisfied that notification of the hearing had been sent by email to Mr Nelson on 9 February 2022." 1. The appellant said in his Notice of Appeal that he was "unaware" of the email of 9 February 2022 because (whilst it had been received) he had overlooked it. 2. He said nothing about his failure to comply with the Tribunal's directions for him to lodge and serve any evidence upon which he wished to rely at the Tribunal hearing before that hearing. 3. The Tribunal noted that the homeowners and the respondent were given the opportunity to cross examine each other and both parties were given the opportunity to provide the Tribunal with written submissions after the hearing. The appellant would have been afforded the same opportunities had he appeared at the hearing. 4. The Tribunal was satisfied that the dispute related to "residential building work" within the meaning of the Home Building Act 1989 (NSW) (the "HBA"), that the application was brought within the time required under the HBA and that the Tribunal had jurisdiction under the HBA to hear and determine both matters. 5. The Tribunal said that the homeowners signed a contract for works to be done at the premises on 30 June 2019. Those works were completed on or about 7 January 2020. The homeowner was seeking to claim 50% of the costs of the contract due to faulty concreting works (excluding a complaint about a retaining wall). 6. The Tribunal said that the homeowners relied on the Optland Report to prove the concreting works were defective and that the respondent sought orders also on the basis that the works were defective as set out in the Rectification Order. 7. The Tribunal said that it was clear on the evidence that there had been a breach by the appellant of s 18B(1)(a) of the HBA, namely that the concreting works were not done with due care and skill and in accordance with the plans and specifications set out in the contract. 8. The Tribunal considered that the appropriate remedy was to make a work order for the appellant to return and undertake the rectification works set out in Fair Trading's Rectification Order in a proper and workmanlike manner. The parties were granted leave to renew these proceedings within 12 months in the event that those orders were not complied with by the appellant. The Appeal 1. The appellant does not dispute that he hung up on the Tribunal when contacted on the day of the hearing, nor that he had not lodged and served any evidence in support of his case before the Tribunal hearing. 2. On this appeal he lodged and served documentary and testimonial evidence which, if accepted, may have provided a defence to the respondent's case against him. 3. In essence, the appellant was seeking leave to appeal pursuant to cl 12(1)(c) of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act"). No other ground of appeal was raised or is apparent to us from reading the material. 4. However, the appellant's evidence is not admissible on this appeal. As explained to the appellant at the hearing of the appeal, new evidence is only admitted in an appeal of this nature if the conditions of cl 12(1)(c) of the NCAT Act are met. 5. Clause 12(1)(c) says: (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) … (b) … (c) 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 words "not reasonably available" mean, objectively, that no person could reasonably have obtained that evidence before the Tribunal hearing - Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]. 2. The appellant's evidence did not fall within cl 12(1)(c) because that evidence could have been obtained by the appellant before the Tribunal hearing had he chosen to do so. 3. Lest that seem harsh, the Tribunal does not operate on the whims of parties. The Tribunal is a limited publicly funded resource provided to decide the real issues in dispute between parties justly, quickly and cheapy. Being a limited resource, the Tribunal is only required to take such measures as are reasonably practicable to ensure that parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(5)(c) of the NCAT Act. 4. The appellant was given that opportunity in that directions were made for him to lodge and serve his evidence, and he was advised of the hearing date by email to the email address he supplied to the Tribunal. However, the appellant declined to take the opportunity he was given to put his side of the story by way of evidence or to appear at the Tribunal hearing. 5. We note, in passing, that compliance with the Tribunal's directions for the lodging and service of evidence was mandatory, not voluntary: s 36(3) of the NCAT Act. 6. As none of the appellant's evidence was admitted on the appeal, and no other ground of appeal was raised by him, the application for leave to appeal must be refused. 7. As the Tribunal allowed the appellant approximately seven weeks to comply with the work order, and as the appellant obtained a stay of the Tribunal orders (which has now expired), we shall allow him approximately the same amount of time to comply with the work order and thus will vary the date in Order 1 made by the Tribunal on 15 March 2022. Otherwise, the Tribunal's orders of the 15 March 2022 remain in force. Orders 1. We make the following orders: 1. Leave to appeal refused. 2. Order 1 made by the Tribunal on 15 March 2022 is varied by substituting the date "12 August 2022" for the date "02-May-2022". ********** 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: 28 June 2022