Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Donohoe v Eastwood [2023] NSWCATAP 15 Hearing dates: 23 January 2023 Date of orders: 30 January 2023 Decision date: 30 January 2023 Jurisdiction: Appeal Panel Before: G Ellis SC, Senior Member G Burton SC, Senior Member Decision: 1. The time for lodging the Notice of Appeal is extended to 27 October 2022. 2. The appeal is allowed. 3. The order made on 16 August 2022 is set aside. 4. In lieu thereof the following order is made. 5. The respondent (Heidi Eastwood) is entitled to be paid $19,639.97 by the appellant (Christopher James Donohoe). 6. As the appellant has already paid that amount, he is not liable to make any further payment in respect of the application with the reference HB 22/21536. Catchwords: APPEAL – Failure to deduct balance of contract price in money order made in renewal proceedings Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) ss 4, 80(2) Civil and Administrative Tribunal Rules 2014 (NSW) cl 25 Cases Cited: Bellgrove v Eldridge [1954] HCA 36 Haines v Bendall [1991] HCA 15 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Category: Principal judgment Parties: Christopher James Donohoe (Appellant) Heidi Lorraine Eastwood (Respondent) Representation: Appellant (self-represented) P White (respondent) File Number(s): 2022/00322730 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2022] NSWCATCD Date of Decision: 16 August 2022 Before: D Charles, Senior Member File Number(s): HB 22/21536 reasons for decision Outline 1. This is an internal appeal, under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), against a decision made in the Consumer and Commercial Division of the Tribunal on 16 August 2022 which found in favour of the respondent (the owner) in relation to her renewal application lodged against the appellant (the builder). 2. The owner lodged an application (HB 20/29391) which, following a hearing on 16 June and 16 September in 2021, resulted in a work order being made on 28 February 2022. In the published reasons, at [97], under the heading "Payments made and still to be made under this Contract", it was said: The parties agree as to the amount of money paid to date and that a final payment of $13,400.00 is to be made by the [owner] to the [builder] after completion of the Work. 1. The owner later lodged on 13 May 2022 a renewal application (HB 22/21536) which was finalised on 16 August 2022 when an order was made for the builder to pay the owner $33,039.97. 2. The Notice of Appeal lodged 27 October 2022 indicated that the appeal is based on the builder's claim that the decision in the renewal application failed to take into consideration an amount of $13,400 that had been referred to as agreed in the original application. 3. An application for a stay was made when the Notice of Appeal was lodged. That application was granted on 9 November 2022. On the owner's application, the Local Court has issued a garnishee order for $13,501 on 12 October 2022. 4. Having considered the documents provided by the parties and their submissions, we have decided that the amount of $13,400 should have been deducted from the amount of $33,039.97 with the result that the money order made on 16 August 2022 should have been for an amount of $19,639.97. 5. Since the builder has already paid that amount to the owner, the Tribunal has allowed the appeal, made an order for the correct amount, and noted that amount has already been paid. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with leave (that is, the permission) of the Appeal Panel: NCAT Act, s 80(2). 2. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel set out at [13] listed of questions of law as: 1. Whether there has been a failure to provide proper reasons. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law had been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. In the NCAT Act, s 41 provides that the Tribunal may grant an extension of time. The relevant considerations as to the exercise of the discretion were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson) at [22] and they are as follows: 1. Is there proof that strict compliance with the rules will work an injustice on the applicant? 2. In the context of a pending appeal, the expiration period for the appeal gives a vested right to retain the decision in question with the consequence that the time for appealing should not be extended unless the proposed appeal has prospects of success. 3. It will usually be necessary to consider: 1. the length of the delay, 2. the reason(s) for the delay, 3. the applicant's prospects of success, ie whether there is a fairly arguable case, and 4. the extent of any prejudice suffered by the opponents. 1. If the explanation for the delay is less than satisfactory and/or if the opponent as a substantial case of prejudice, it may be necessary for the applicant to show substantial merit, not just that it is fairly arguable. Documents 1. The builder has lodged the Notice of Appeal, received on 27 October 2022, and documents received on 3 and 30 November 2022. The owner has lodged a Reply to Appeal, received on 7 November 2022, and documents received on 1 and 7 November 2022. Notice of Appeal 1. Orders were made and reasons published on 16 August 2022. Since the effect of cl 25 of the Civil and Administrative Tribunal Rules 2014 is that the Notice of Appeal should be lodged within 28 days, that provision required the Notice of Appeal to be lodged on or before 13 September 2022. As already stated, the Notice of Appeal was received by the Tribunal on 27 October 2022. As a result, the appeal is out of time by 44 days which is just over six weeks. Grounds of Appeal 1. In the Notice of Appeal, the only ground indicated was that: The senior member erred in not considering the application in the renewal of proceeding request by the [owner] that she did not have to pay $13,400. Attached is the form submitted by the applicant. Builder's case 1. Mr Donohoe referred to the agreement recorded in the reasons published in relation to the original application (at [97]), noted that the respondent's renewal application sought an order that she does not have to pay the amount of $13,400, and said that matter was raised during hearing of the renewal application in Penrith but was not dealt with. He suggested that the presiding member expressed the view that was a matter he could not do anything about. Mr Donohoe indicated that he paid $19,639.97, being the difference between the amounts of $33,039.97 and $13,400. 2. As to the delay in lodging the Notice of Appeal, Mr Donohoe said he paid that amount on 13 September 2022 in compliance with the orders made on 16 August 2022, that he later received an email which suggested the respondent was pursuing the balance of $13,400 in the Local Court, and that he discussed the matter with a friend which prompted him to check with the Local Court in Penrith. He indicated that, after contacting the Local Court in Penrith on 26 October 2022 and discovering that the owner had lodged paperwork, he lodged a Notice of Appeal and a stay application the next day, that is, 27 October 2022. 3. In his submissions in reply, Mr Donohoe said that the work he did was covered by a warranty if it was sub-standard. Owner's case 1. The owner's position, in the documents she lodged, is that the agreement recorded in the reasons published on 28 February 2022 was that the amount of $13,400 was only payable when the work was completed by the builder and the work was never completed. Her documents included a copy of her 22 June 2022 affidavit which indicates there was a contract dated 27 February 2018 for building work to be carried out on an existing dwelling at Emu Plains with a contract price of $268,000. 2. It is noted that, on 9 November 2022 the Tribunal granted leave for Mr White to represent the respondent, Ms Eastwood. 3. Mr White referred to the fact that the appeal was lodged late and claimed that there was still building work needing to be done. He referred to the pool, plumbing and the windows and noted that the respondent is living in the premises which are the subject of these proceedings. Consideration 1. As was indicated at the outset of the hearing, an appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. Likewise, the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states: "an appeal is not an opportunity to have a second go at a hearing". 2. This appeal is not an occasion for re-running either the hearing of the original application or the renewal application: its purpose is to see if the builder has identified any error in the outcome of the renewal application. 3. The owner's original application resulted in a work order that was made on 28 February 2022. There was an unpaid balance of the contract price of $13,400. Although the Tribunal did not make any order in relation to that amount, the final paragraph of the reasons published that day (quoted above) noted the agreement of the parties that $13,400 would be paid by the owner to the builder after completion of the work. It is clear that, had a money order been made on that occasion, an amount of $13,400 would have been deducted from the amount considered to be payable in respect of defective work. 4. The owner's renewal application sought (1) an order for the payment of $49,000, and (2) an order that the owner did not have to pay $13,400. That renewal application resulted in a money order for $33,039.97 being made on 16 August 2022, replacing the earlier work order, but did not deal with the amount of $13,400. 5. It is a well-established principle for assessing damages for a breach of contract that the party affected by that breach should be put in the same position as if the breach had not occurred: Haines v Bendall [1991] HCA 15. Bellgrove v Eldridge [1954] HCA 36 makes it clear that any unpaid balance of the contract price must be deducted from any amount payable as damages. 6. By way of example, assume an owner agreed to pay a builder $300,000 to build a house and, after $260,000 was paid, an application claiming defective work was heard and finalised on the basis that there was defective work for which the reasonable cost was $100,000. If the builder was ordered to pay the owner $100,000 then the owner would get a defect-free house for only $260,000. By deducting the unpaid balance of the contract price, in this instance $40,000, the owner is awarded $60,000 and her position is: (1) she paid $260,000 to the builder; (2) she pays $100,000 to have the defects repaired, and (3) she receives $60,000 from the builder. Her net position is that she is out of pocket by $300,000, the same as if the house had been built without any defects. 7. If the owner was paid $33,039.97 and used that money to rectify the defective building work then she would have the building work completed in a defect-free manner, as if the building work had been carried out without any defects. However, she would be $13,400 better off because she did not pay the full contract price. That is why an amount of $13,400 should clearly have been deducted from the amount of $33,039.97 that was awarded to the owner on 16 August 2022. The amount which should have been awarded was $19,639.97. 8. Simply stated, had the builder complied with the work order then the owner would have been obliged to pay the builder $13,400. The money order made in the renewal application was the result of a determination by the Tribunal of what amount was required to complete the work the subject of that work order. That amount was awarded to facilitate completion of the work instead of the work order. In other words, the only difference is that, instead of the rectification work being carried out by the builder, it would be carried out by another builder and the owner was awarded an amount to enable her to achieve the same outcome, being completion of the work the subject of the work order. 9. Prendergast established that the question of whether the Tribunal failed to take into account a relevant consideration is a question of law. As there was such a failure in relation to the amount of $13,400, there has been an error on a question of law. 10. It remains to consider whether the builder should be granted an extension of time for the lodgement of his Notice of Appeal. In this instance, a strict compliance with the rules would work an injustice on the builder by requiring him to pay an amount which the owner is clearly not entitled to receive. The length of the delay, about six weeks, is not long and a good reason has been provided for the delay, namely that the builder took steps to lodge an appeal the day after he became aware that the respondent was seeking to recover the amount of $13,400 through the Local Court in Penrith. The builder's case on this point is clearly correct and it would work an injustice not to permit the extension of time. 11. In those circumstances, there is a clear case for granting the builder an extension of time to cover the period from when the Notice of Appeal should have been lodged to when it was lodged. Orders 1. For the reasons set out above, the orders that will be made are as follows: 1. The time for lodging the Notice of Appeal is extended to 27 October 2022. 2. The appeal is allowed. 3. The order made on 16 August 2022 is set aside. 4. In lieu thereof the following order is made. 5. The respondent (Heidi Eastwood) is entitled to be paid $19,639.97 by the appellant (Christopher James Donohoe). 6. As the appellant has already paid that amount, he is not liable to make any further payment in respect of the application with the reference HB 22/21536. ********** 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 Amendments 30 January 2023 - Order 1 updated. 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: 30 January 2023