Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Liang v Jasta Constructions Pty Ltd [2022] NSWCATAP 364 Hearing dates: 17 October 2022 Date of orders: 17 November 2022 Decision date: 17 November 2022 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member G Curtin SC, Senior Member Decision: 1. The appeal is dismissed. 2. Leave to appeal to the extent it may be necessary is refused. Catchwords: BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Building dispute — no alleged errors identified or apparent – no substance to the appeal – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 12(1)(c) Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Chenwenyi Liang (Appellant) Jasta Constructions Pty Ltd (Respondent) Representation: Appellant (Self-represented) J Arairo (Project Manager) (Respondent) File Number(s): 2022/00230973 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 3 August 2022 Before: R Titterton OAM, Senior Member File Number(s): HB 22/17663 REASONS FOR DECISION 1. In this appeal the appellant ("Owner"), assisted by an interpreter, appeals from the Tribunal's decision ordering her to pay to the respondent ("Builder") $64,376.63 being the amount found to be owed under a home building contract entered into between the parties and dated 1 February 2021. That order was made in proceedings commenced by the Builder against the Owner for those monies. 2. Save for one matter, the Owner's complaints on appeal raised matters which would be appropriate in proceedings commenced by the Owner against the Builder but are not relevant (as a defence) to the proceedings from which this appeal has been brought. We shall describe these complaints as "cross-claim issues" for ease of reference and because they were similarly described in the Tribunal's decision and the transcript of the hearing. 3. The remaining matter, which was relevant on this appeal and in the proceedings before the Tribunal at first instance, was whether the building work was completed. Before the Tribunal the Builder led credible evidence (which was accepted) that the work was completed, and the Owner led no evidence at all. In those circumstances the result of the proceedings at first instance was inevitable. 4. No error of law nor any other error which might have justified a grant of leave to appeal was identified by the appellant nor was apparent to us from our reading of the material. Accordingly, the appeal must be dismissed. Summary for the Parties 1. This is a summary of our decision on the main points raised by the Owner on the appeal. 2. An appeal is not a second hearing. On an appeal the appellant must show that the Tribunal made a mistake in reaching its decision on the evidence which the Tribunal was given. If a mistake was not made, the Appeal Panel does not change the decision. 3. A party cannot provide new evidence on an appeal unless that evidence was all but impossible to obtain and provide to the Tribunal and the other party for the hearing at first instance. 4. In this case the Tribunal did not make any mistake. 5. The Tribunal was correct in not considering the cross-claim issues. Those issues needed to be raised in proceedings commenced by the Owner and she had not commenced such proceedings before the hearing before the Tribunal. 6. The Owner has now commenced those proceedings, but those new (cross-claim) proceedings were not before the Tribunal at the time the decision appealed from was made. 7. As for the proceedings which were before the Tribunal, the Owner was aware of the need to lodge and serve her evidence before the hearing date. We do not accept her submission that she did not receive notice of the directions (made on 23 May 2022) requiring her to lodge and serve her evidence before the hearing. Therefore, the Tribunal made no mistake in proceeding with the hearing in the absence of any evidence from the Owner. 8. The Owner did tell the Tribunal that some work had not been completed. But she did not prove, with evidence, that certain, identified work had not been completed, and what the extent of the non-completion was. 9. In addition, she did not prove, with evidence, that any of the conditions mentioned in cl 8 of the contract existed and therefore that the work had not been completed in accordance with cl 8. Background 1. The Owner owns a block of land in North Sydney, NSW, upon which sat an old semi-detached house. 2. The Owner desired to demolish the old house and build a new house. The Owner told the Tribunal she intended to rent the property out after the new house was built, she had a mortgage and she intended to rely on the rent to pay the mortgage payments. 3. She obtained development consent from North Sydney Council (the "Council"), but the consent was subject to a number of conditions relating to the heritage significance of the old house. 4. The parties entered into a written fixed price building contract, in the form of a standard form Home Building Contract for Work Over $20,000 (the "Contract"), signed by the Owner on 1 February 2021 for the construction of the new work (the "building work"). It was signed by the Builder on 4 January 2021. The fixed price under the Contract was $601,980. 5. Relevant terms of the Contract included that: 1. the building work had to commence within 14 days of the date of the Contract; 2. the demolition and excavation works of the old house were expressly excluded from the work to be undertaken by the Builder. 1. The Contract provided (subject to any extensions of time under the terms of the Contract) for the building work to be completed within 40 weeks from the date the building work was due to commence, which by our calculation would be 42 weeks from 1 February 2021, namely 22 November 2021. 2. There was evidence before the Tribunal that the demolition and excavation work, organised by the Owner with other contractors, commenced on or about 2 February 2021. 3. There was evidence before the Tribunal that there were problems with that demolition and excavation work, which included at least one prohibition order issued by SafeWork NSW dated 2 March 2021 in relation to the safe removal of asbestos. 4. There was evidence before the Tribunal by way of contemporaneous text messages to the effect that excavation was continuing at least until 3 May 2021. 5. It is appropriate to divert briefly to note that one of the Owner's cross-claim issues raised against the Builder (on this appeal) was the delay in completing the building work. It was the Builder's evidence before the Tribunal that delays in completing the demolition and excavation work was one cause of delay in completing the building work. 6. Needless to say, substantial completion of the demolition and excavation work would be necessary before the building work under the Contract could begin, and any delays in the completion of the demolition and excavation work would necessarily delay the commencement of the building work. 7. Before the Tribunal, when this matter was briefly discussed, the Owner seems to have accepted that the delay in the completion of the demolition and excavation work, from a practical perspective, justified a delay in the commencement of the building work, but seems to have taken the view that that would not impact the contractual requirement to commence building work within 14 days of the date of the Contract. In her complaint to Fair Trading dated 10 August 2022 the Owner said: "The building contract was exchanged on 01/02/2021, 40 weeks completion should end by Nov 2021. Builder confirmed completion date was 29/03/2022. We don't have agreement of time extension before Nov 2021. Excavation work was excluded in contract, it was coordinated by my husband Jeff and the builder, but there was no agreement for time extension for excavation work. During excavation builder sent sms with my husband said he cannot start his work before excavation complete, however my husband is not a contract party or my legal rep." 1. That position seems to overlook cl 7 of the Contract which provides that if the building work was delayed by one or more matters specified in cl 7, the Builder would be entitled to a reasonable extension of time. Amongst the specified matters was "any act or omission of the owner" and "and other matter, cause or thing beyond the control of the" Builder. 2. Returning to our narrative of the background to this appeal, on 3 March 2021 the Owner emailed the Builder and said, amongst other things, that she had an "owner builder certificate" and a "white card". The former is, we infer, the permit owner builders are required to obtain in NSW if they are wanting to supervise or do building work worth more than $10,000 on their home, and they do not intend to contract a licensed builder to supervise the work. The latter is the general construction induction card obtained after the successful completion of a construction induction training course conducted by a registered training organisation and a necessary prerequisite to the obtaining of an owner builder permit. That certificate and card would indicate the Owner is not completely unfamiliar with building contracts like the Contract in this case and building work generally. 3. The Tribunal found that the building work commenced on 24 May 2021. Forty weeks from that date is 28 February 2022. 4. After commencement of the building work other problems arose. For example, the Council issued a number of stop-work orders for a small number of days due to alleged breaches of development approval requirements and there were a number of COVID-19 orders issued by the NSW Government which prevented building work being undertaken for a period of time. The Builder's evidence was that there were seven weeks of delays in total caused by such matters. If correct, and if allowable under cl 7 of the Contract to justify an extension of time, the due date for completion was 18 April 2022. 5. However, before that date, and on 16 February 2022, the Council inspected the property and found: "… numerous non-compliance with the conditions of consent and unauthorised works specifically with regard to works required to preserve the heritage significance of the original cottage." 1. The Council issued a Proposed Order No. 11 for the carrying out of certain specified work under the supervision of a qualified heritage architect, such work to be completed within 28 days. 2. The Tribunal found that the Builder's work was completed on 29 March 2022. 3. It is apparent from the email evidence that, at least as at 22 April 2022, the Council was not satisfied that all of the remedial work it required in Proposed Order No. 11 had been completed. 4. In short, the Owner complained that the delays in completion of the work necessary to obtain an occupation certificate caused her financial loss because she was unable to rent out the property from the expected date of completion of the building work. 5. The Owner complained that the Builder was responsible for that delay because it did not finish the construction by the due date under the Contract, and she had not received an occupation certificate from the Council because the remedial work required by Council had not been completed. It is apparent that the Owner alleges that the need for at least some of the remedial work required by Council was caused by the Builder. The Owner also alleged that there was some defective work that the Builder was obliged to rectify under the terms of the Contract but which the Builder had not rectified. 6. On 24 April 2022, the Builder commenced proceedings against the Owner claiming the balance owed under the Contract and an additional $18,000 (approx) for an alleged variation. 7. On 29 April 2022, the Tribunal posted a letter to the Owner (at her correct address) notifying her that a Directions Hearing would be held on 23 May 2022. 8. On 23 May 2022, the Tribunal held a Directions Hearing. The directions made included the requirement for the parties to lodge with the Tribunal and serve on the other party the evidence upon which that party intended to rely. 9. The Owner was directed to lodge and serve her evidence by 11 July 2022. 10. In accordance with the Tribunal's usual procedures a letter setting out the directions made was sent to both parties (at their correct addresses) dated 23 May 2022. 11. On 1 June 2022, the Tribunal sent correspondence to the Owner (at her correct address) informing her that the hearing of the proceedings would take place on 3 August 2022. 12. On the appeal the Owner said that she did not receive the Tribunal's letter dated 23 May 2022 and was unaware of the direction made for her to lodge and serve her evidence before the hearing, a submission which potentially raised an issue of procedural fairness. We shall deal with that matter immediately. 13. The transcript of the hearing before the Tribunal does not support the Owner's submission. 14. The following exchange took place between the Tribunal and the Owner: "Titterton (00:35:01): No, no, you were supposed to supply it ages ago so that we could have the hearing today. You were directed on the, on the ...see this is, this is my point. You were told on the 23rd of May ... Miss Liang (00:35:11): I know. Titterton (00:35:12): ...to file your evidence by the 11th of July. You haven't done it. Miss Liang (00:35:17): Yeah, I know. Um, please allow me a few, few minutes ... I wish to ...l wish to give a summary ..." 1. Given that exchange, the fact that the notice of the date for the directions hearing and the notice of the hearing date (the latter was clearly received) were sent to the same address as the notice of the directions made (none of which the Tribunal's file shows were returned as undelivered) and that all letters were sent to the Owner's correct address, we do not accept the Owner's submission that she was unaware of the Tribunal's direction to lodge and serve her evidence before the hearing. Accordingly, we do not accept that any procedural unfairness may have occurred in that respect. 2. The hearing before the Tribunal took place on 3 August 2022. 3. On 4 August 2022 (and not 31 July 2022 as the Owner said in her Notice of Appeal) the Owner commenced proceedings against the Builder in the Tribunal (HB 22/35025) raising her cross-claim issues. The Hearing before the Tribunal 1. There were three issues before the Tribunal: first, the Builder's claim for a variation; second, the Builder's claim for the balance of the Contract sum, and; third, the Owner's cross-claim issues. 2. The Owner filed no evidence of any kind prior to or at the hearing. 3. The variation issue was resolved in favour of the Owner and no appeal on that issue has been brought by the Builder. 4. As to the second issue, the Owner claimed that the building work had not been completed. 5. As to that issue (and the third issue), and the Builder's claim for the balance of the Contract sum owing, the Tribunal said: "I note that Ms Liang accepted that she owed the applicant $61,366.30 which is stated as the amount due to the applicant on its invoice INV-0071 dated 11 April 2022." 1. The transcript contains the following exchange regarding the unpaid amount under the Contract: Titterton (00:32:24): All right, I see. All right. I see, I see. Okay. Um... Okay, if...if at the ...hold on, sorry. l'm ...l'm trying to articulate something. I'll get there. As of the eleventh of April, the respondent you say, and the respondent agrees, okay. That she owes you the 61,366, I think. Is that right, Miss Liang, you accept that you owe him the, the company 61,366 dollars and 36...right? Miss Liang (00:33:19): Yes. Yes." 1. After examining the evidence of the Builder and reading the relevant terms of the Contract the Tribunal made the following findings: "Based on the evidence before me l am satisfied that: 1. The respondent has finished the work in accordance with the contract documents and any variations. 2. There are no omissions or defects that prevent the work from being reasonably capable of being used for its intended purpose, any damage of the kind referred to in Clause 19 has been repaired, and all rubbish and surplus material has been removed from the site. 3. The applicant has notified the respondent that the works would be completed by 29 March 2022. While there was no evidence that the applicant had notified the owner in writing certifying that the work had been completed in accordance with the Contract, l accept from the emails sent by the respondent after that date that the respondent was aware that the applicant claimed that the works had been completed. 4. The respondent has not advised advise the applicant in writing ten days after the claimed completion of the works of any items of work the respondent considered to be incomplete or defective. 5. As the respondent has not so notified the applicant the works are taken to be complete: cl 8 of the Contract." 1. As to the third issue, the Tribunal said that: "(The Owner) told the Tribunal today that she was concentrating on issues identified by her Council in respect of the applicant's work. Once that is resolved, she intends to file her cross claim relating to rectification works and seeking damage for delays in construction. She says her losses total over $100,000 and are continuing as she is unable to rent out the house. l allowed Ms Liang to address me on these matters, but l explained that they were not relevant to the issues I had to determine today." 1. And: "However, clearly she wanted (the amount claimed by the Builder) to be taken off any amount of compensation she may be awarded in her cross-claim. As she has filed no cross-claim, that is not possible." Grounds of Appeal 1. In her Notice of Appeal the Owner set out her Grounds of Appeal as follows: "I'm not familiar with NCAT procedure, I have notified applicant by email on 12 May that I was not able to make counter claim now due to loss is continued, I thought applicant will notify NCAT and advise me what to do. Thus I didn't provide any evidence for cross-claim before hearing. During the hearing on 03/08/2022 I told Mr Titterton the same due to the house is unable to be occupied my loss is continued, because of the non-compliance work done by builder which were identified by council. I was planning to file my cross-claim application once builder's rectification work has been satisfied by council and my loss is stopped, by then I shall be able to give a final figure for my claim. Thus NCAT doesn't need to rework on duplicated documents. Apart from that I also mentioned to Mr Tltterton the contract was exchanged on 1/2/2021, Clause 5 says the contractor must commerce the work within 14 working days from the date of this contract. Contract term was 40 weeks which ended by 1 Nov 2021. There was no time extension agreement before that date for excavation or variation, however builder declared actual completion date was 29 Mar 2022. That already forms part of my rental loss caused by delay completion." 1. We understand that to convey that the Owner was raising the cross-claim issues. 2. On the hearing of the appeal, the Owner added two grounds of appeal. The first was the matter of procedural fairness which we have already dealt with. The second concerned her concession to the Tribunal that she did owe a little over $61,000 to the Builder. (We note that the final figure of $64,376.63 order to be paid was the admitted figure plus another small amount which was not the subject of any dispute save for the Owner's claim that the building work had not been completed.) 3. The Owner told us that when she told the Tribunal that she accepted that she owed the Builder approximately $61,000, what she meant was that that figure was the mathematical balance unpaid under the Contract, but that she did not owe it because the building work had not been completed. She submitted that the Tribunal must have misunderstood her concession and thus not examined the question whether the building work had been completed. Decision Procedural Fairness 1. We have dealt with the procedural fairness issue earlier in this decision and explained why that ground must fail. Cross-claim Issues 1. The cross-claim issues points must also fail because they are not relevant to this appeal in two ways. First, no evidence to support them was given to the Tribunal. Second, even if they were made out, they would not constitute a defence to the Builder's claim. They could only be raised if the Owner had commenced proceedings against the Builder and those (cross-claim) proceedings were before the Tribunal for hearing at the same time as the Builder's proceedings. 2. The Owner sought to tender some documentary evidence on the cross-claim issues on the appeal, but we refused to consider that evidence for four reasons. 3. First, that material had not been lodged and served prior to the Tribunal hearing and did not meet the test of not being reasonably available to the Owner before that hearing – Sch 4, cl 12(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW). 4. Second, to consider it would necessarily give rise to the necessity of providing an opportunity to the Builder to respond to it, and opportunity it had not been given. 5. Third, the cross-claim issues would not constitute a defence to the Builder's claim. 6. Fourth, the Owner has commenced proceedings in relation to the cross-claim issues, and those proceedings are the appropriate place for those issues to be decided and the new evidence to be considered. Non-Completion 1. We do not agree that the Tribunal misunderstood the Owner's concession that she owed the Builder for the balance owing under the Contract. 2. The non-completion issue was raised by the Owner before the Tribunal. The following exchange between the Owner and the Tribunal about the non-completion issue took place after the Builder's oral evidence was completed: "Titterton (00:46:43): Right, okay. All right, Miss Liang, do you want to ask Mr. Wasiff any questions about that, or do you want to tell me why you say that the project was not completed? Miss Liang (00:46:51): It's because it is not completed, they have not finished some uh, um, major works and uh, they have done their [inaudible 00:47:01) required by consult, uh but they haven't done for the defect to repairing. There is quite a few defects I have told them when, when, yeah. We, we have walked around through the house, there's quite a few, like broken in the floor, like broken in the branch top, like uh .... the front yard not finished. The front yard [inaudible 00:47:23] I have asked him to finish, but uh, he confirmed he will not finish the defect work, I uh, whatever I pay, after I pay the money or whatever he has uh ...sent ...he has confirmed that in his email. He hasn't done the defect work. Titterton (00:47:43): Okay. Anything else? Miss Liang (00:47:44): No, that's it. For the defects, for the conditions, that's it." 1. No other mention is made of "major works" in the entirety of the transcript, and, as we have mentioned, no evidence of uncompleted major work was given by the Owner to the Tribunal. We infer it is simply a reference to defects. 2. The Builder did concede that it had not attended to the defects requiring rectification. Immediately after the exchange we have set out above the following exchange occurred: "Titterton (00:47:51): All right. Any response, Mister ... Mr. Wasiff? Christian Wasiff (00:47:55): Um, yep, so, we have I guess not let us back on site, and also we are hesitant to complete any defects outstanding that...sorry, that may be outstanding um, until I guess we receive final payment, I guess, as stipulated in the contract. Um...as we are afraid that, you know, owing, excluding the variation at this stage, over 60,000. Titterton (00:48:22): All right. Okay. Well I understand your ...both of your positions on that. Christian Wasiff (00:48:27): And we haven't received an updated defects list, not just yet, sorry. Um... Jasmine Therese Arraro (00:48:33): There's ...there's a substantial amount of money owing um, for us to finish everything up [inaudible 00:48:40] Titterton (00:48:41): Just explain what you said to me first about the contract itself, practical completion ...uh ...does not have to include, or doesn't have to include rectification of any minor defects. Christian Wasiff (00:48:54): It does not. Titterton (00:48:54): What clause is that? Christian Wasiff (00:48:57): Uh, it is clause eight, completion of work." 1. Clause 8 of the Contract said: "The work will be complete when the contractor has finished the work in accordance with the contract, documents, and any variations, there are no omissions or defects that prevent the work from being reasonably capable of being used for its intended purpose, any damage of a kind referred to in Clause 19 has been repaired, and all rubbish and surplus material has been removed from the site. When the contractor believe the work is complete, the contractor must notify the owner in writing certifying that the work has been completed in accordance with this contract. Within 10 business days of receipt of written notice from the contractor, the owner must advise the contractor in writing of any items of work the owner considers to be incomplete or defective. If the owner does not so notify the contract is taken to be complete. The contractor must complete any outstanding work properly and again notify the owner in writing. Unless the owner notifies a contractor in writing that any item is still incomplete or defective within a further 10 business days from receipt of notification by the contractor, the work will be taken to be complete. Should there be any dispute between the parties as to whether the work has been completed, it must be dealt with in accordance with the dispute resolution procedure (Clause 27)." 1. The Tribunal considered this clause in light of the Builder's admission that it had not attended to the defects. The Tribunal found that the conditions in cl 8 which may have prevented the Builder claiming that the work had been completed had not been satisfied. 2. In other words, the Owner had not led any evidence proving that: 1. any part of the work was not reasonably capable of being used for its intended purpose (because of the alleged defects); 2. rubbish and surplus material had not been removed from the site; nor 3. she had advised the Builder in writing of items of work the Owner considered to be incomplete or defective. 1. In the absence of any evidence from the Owner on those matters, and in light of the Builder's evidence to the contrary, the Tribunal's decision was inevitable. No error in the Tribunal's reasoning has been identified nor is any apparent to us. 2. It follows that all grounds of appeal fail. 3. We note, of course, that the Builder is contractually obliged to attend to the defects as per the terms of the Contract. Orders 1. We make the following orders: 1. The appeal is dismissed. 2. Leave to appeal to the extent it may be necessary 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: 17 November 2022