Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jethsons Pty Ltd v Ly [2023] NSWCATAP 97 Hearing dates: 27 March 2023 Date of orders: 27 March 2023 Decision date: 05 April 2023 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Goldstein, Senior Member Decision: 1 To the extent that leave to appeal was required, leave is refused. 2 The appeal is dismissed. Catchwords: APPEALS – procedural fairness – question of law - money order in home building case made in absence of builder and any evidentiary material and submissions from the builder – on appeal builder said he preferred a work order for less work than the work the subject of the money order - builder aware of proceedings and hearing date – no reasonable explanation for failure to attend hearing – no procedural unfairness established – no grounds for leave to appeal. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation (NSW) Civil and Administrative Tribunal Rules (NSW) Cases Cited: HT v The Queen [2019] HCA 40; 269 CLR 403 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Bharat Varsani (Appellant) Terry Ly (Respondent) Representation: Both parties were self-represented File Number(s): AP 2023/00015236 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: 23 December 2022 Before: S Hennings, General Member File Number(s): HB 22/29742 REASONS FOR DECISION 1. On 27 March 2023, after the completion of the hearing in this appeal that day, in which the appellant was represented by Mr B Varsani (pursuant to leave given on 3 February 2023) and the respondent appeared for himself, we refused an application for leave to appeal and dismissed the appeal. These are the reasons for making these orders. 2. The appellant (the Builder) is a company of which Mr B Varsani is a director and shareholder. It appeals from an order made on 23 December 2022 that it pay the sum of $19,998.00 immediately to the respondent in respect of the cost of defective tiling work carried out at premises owned by the respondent. On appeal, the Builder sought an order that the money order be set aside and instead a work order be made for the defective work to be rectified, or an order be made that gives the Builder an opportunity to respond with an expert report. On appeal, the Builder contended that much less work was required to fix the problem than the work the subject of the money order. 3. The order appealed from was made in the absence of the Builder and in the absence of any evidentiary material and submissions from the Builder. 4. The Builder did not make an application to set aside the decision under Regulation 9 of the Civil and Administrative Regulation 2022 (NSW), but instead brought an internal appeal from that decision. With respect to such an appeal, an appellant may appeal as of right where the appeal raises a question of law and otherwise requires leave to appeal: s 80 (2) (b) of the Civil and Administrative Tribunal Act 2013 (NSW). 5. As to the question of leave, the requirements in clause 12 of Schedule 4 of that Act were applicable because this was an appeal from a decision of the Consumer and Commercial Division of the Tribunal. Under clause 12 of Schedule 4 the appellant must satisfy the Appeal Panel that leave to appeal should be granted because: …..the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (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 Builder's only ground of appeal raised an issue about procedural fairness. As to this, the Notice of Appeal, signed by Mr Varsani, stated as follows: We have not been receiving any Documents from Other Party or NCAT. We were not aware of the hearing date or any Dates or Documents we had to Submit. The Address mentioned on Orders is OLD address and property was sold in JAN 2021. 1. The Builder's address referred to in the order made on 23 December 2022 was a Unit in Quakers Hill, a suburb in the Greater Western region of Sydney. As appears below, this address was, at least, the Builder's registered office. 2. Given that the appeal raised a question as to whether there was procedural unfairness to the Builder in making this decision, we accept that the appeal raised a question of law: John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13(4)]. 3. We consider the relevant circumstances in the light of the legal requirement that a party should have a reasonable opportunity to present evidence and make submissions in answer to the case brought against them: HT v The Queen [2019] HCA 40; 269 CLR 403; per Kiefel CJ, Bell and Keane JJ at [17]. 4. In the Notice of Appeal, the appellant also sought leave to appeal on the basis of contentions that the decision was not fair and equitable, it was against the weight of the evidence and that significant new evidence was now available that was not reasonably available at the time of the hearing. 5. As to the contention that the decision was not fair and equitable, the Builder stated in the Notice of Appeal: The decision was made in our Absence. We have not been receiving any documents or directional orders. We were aware there was a case but when checking with other party, we seem to have reached a mutual agreement. It was agreed after Christmas Holidays the other party would give us access to rectify defective work. And this was our understanding until we found out there had been already a money order issued. On 5th January we contacted house owner to Book Trades, he informed us, a decision is already made. 1. As to the contention that the decision was against the weight of the evidence, the following was stated in the Notice of Appeal in response to questions set out in the form of the Notice of Appeal concerning this topic: We were not given any opportunity to respond to their finding. Building report was submitted by other party, which we did not receive initially. But after requesting it was emailed to us. And documents not reaching us. No email received also. 1. As to the contention that there was significant new evidence now available that was not reasonably available at the time of the hearing, it was said in the Notice of Appeal that the Builder now seeks an opportunity to provide a building report and that such a document was not available because there were no directions to submit this document and no paperwork seemed to reach the Builder on time. 2. In an email sent to the Appeals Registry and the respondent on 24 January 2023, to which various documents were attached, the Builder stated: ….. Please find Further Evidence: Related to During the period none of the correspondence or notices were received, thus unaware of the hearing date. As we had moved from that property since 04/03/2021. 1. Two documents were attached to this email. The first was a copy of the results of a search of the Unit in Quakers Hill on realestate.com. This said nothing about when the property was sold. The second document was an email from a lawyer to the Builder sent on 4 March 2021, which forwarded an email from Pexa, which stated that settlement of an unidentified property had been completed successfully. 2. Despite a direction made, in respect of the conduct of the appeal, on 3 February 2023 for the appellant to provide, by 24 February 2023, any evidence not provided to the Tribunal at first instance on which it was intended to seek leave to rely on the appeal and written submissions in support of the appeal, no such material was provided by the Builder. At the hearing of the appeal, Mr Varsani told us that this was because he had been wanting to obtain access to the premises where the alleged defective work was carried out but he had been unable to arrange with the respondent for this to occur. This was disputed by the respondent. 3. Regardless of the correctness of what Mr Varsani told us, what he said provided no explanation for the absence of any affidavit or witness statement from him, and written submissions, in support of his case of the lack of a reasonable opportunity to present his defence. 4. As appears below, at the hearing of the appeal, it became clear that in a number of important respects these statements in the Notice of Appeal and in the email sent on 24 January 2023 were incorrect and incomplete. 5. The relevant procedural history of the proceedings at first instance, as we find it, is as follows: 1. On 4 July 2022, the respondent on the appeal commenced proceedings in the Tribunal against Mr Varsani individually (not against his company) seeking compensation in respect of defective tiling work carried out in the bathroom of his property. The address given for Mr Varsani in the application was a Unit in Marayong in the Greater Western Sydney region. 2. By orders made by the Tribunal on 9 August 2022, the respondent to the proceedings was changed to the Builder. The hearing was adjourned to a date to be fixed by the Registrar. Other directions were made for the parties to provide material that each relied upon in the proceedings. 3. By a notice dated 11 August 2022, a notice of hearing at the Liverpool Registry of the Tribunal on 18 October 2022 was sent to the parties. One of the notices was sent to the above Unit in Quaker's Hill, New South Wales. A copy of an ASIC company search carried out 6 July 2022, provided by the respondent on the appeal, disclosed that this Unit was the registered office and principal place of business of the Builder. It also disclosed that Mr Varsani was the sole director and shareholder of the appellant, and its secretary, and gave the Unit as his address. 4. At the hearing of the appeal, Mr Varsani told us that this Unit remained the registered office of the Builder until a time after the order was made on 23 December 2022. This was despite the fact that, according to Mr Varsani, he and his wife had moved out of the property in early 2021. 5. Mr Varsani attended the hearing on 18 October 2022. He told us that he did so because he received the notice of hearing sent to the Unit in Quaker's Hill because it was the practice of himself and his wife to arrange to collect documents sent to this address during 2022 every three weeks or so, even though he says they were no longer living at the property. At the hearing of the appeal, Mr Varsani was unable to tell us who was living at the property during 2022. 6. At the hearing on 18 October 2022, it was ordered that the hearing be adjourned to a date to be fixed by the Registrar for a directions hearing, noting that a separate notice of the new hearing date would be sent to the parties in the near future. It was also noted that the parties had agreed that the appellant would inspect the premises in the coming two weeks with a view to proposing a method to resolve the problem. 7. Plainly, therefore, by 18 October 2022, through Mr Varsani, the appellant was aware of the proceedings brought against it by the respondent and that important documents concerning the proceedings were being sent to it by post at the registered office of the appellant. 8. When questioned by us at the hearing of the appeal, Mr Varsani told us that he informed the Tribunal on 18 October 2022 that documents should be sent to the email address of the appellant. No reference to such a statement had, previously, been made in any of the appellant's material on appeal. What Mr Varsani told us was contrary to what the respondent had stated in response to the appellant's email of 24 January 2023, in which the respondent said that, at the hearing on 18 October 2022, Mr Varsani had confirmed that information and documentation was to be sent to the Unit in Quakers Hill. Up until the hearing of the appeal, this statement from the respondent had not been contradicted by Mr Varsani. Furthermore, there is nothing on the Tribunal file at first instance that supports Mr Varsani's statement to us about requesting documentation to be sent to the appellant's email address. In these circumstances, and also in light of the established incorrectness and incompleteness of the statements we have referred to by Mr Varsani about the procedural history (as to which, see more below), we are not prepared to accept the uncorroborated statement from Mr Varsani about this, or any uncorroborated evidence from Mr Varsani concerning his appeal. 9. Under s 38 (5) (c) the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal is required to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. In view of our findings about what occurred at the hearing on 18 October 2022 and the manner in which documents were served upon the appellant (see further below), we do not consider that there was any failure to comply with s 38 (5) (c). 10. A notice of a directions hearing at the Liverpool Registry of the Tribunal on 23 November 2022 was sent to the registered office of the appellant. There was no appearance on behalf the appellant at that directions hearing. On that occasion, orders and directions were made for the hearing to be adjourned to a date to be fixed by the Registrar, the respondent on the appeal was to provide the appellant, either in person or by post, with a copy of all documents on which the respondent intended to rely by 7 December 2022 and the appellant was to provide the respondent with a copy of all documents on which it intended to rely by 21 December 2022. A copy of those orders and directions were sent to the registered office of the appellant. 11. By a notice, dated 30 November 2022, "Notice of a hearing-in person" on 23 December 2022 was sent to the parties, including to the registered office of the appellant. 12. On 9 December 2022 at 1:38 PM, the respondent on the appeal sent to the appellant an email to which was attached an expert's report from Southern Independent Building Inspections, dated 3 December 2022, upon which the respondent on the appeal relied in the proceedings at first instance. At the hearing of the appeal, Mr Varsani told us that he received this email and the attached expert's report about this time. The email was in the following terms: Hi Bharat, please see attached. As discussed over the phone earlier on, I am happy for you to rectify this as per the building expert's instructions: "To rectify the ensuite wall tile fall, missing water stop to the ensuite shower and water penetration of the walls will require strip and refit of all ensuite wall and floor tiles, replacement of the waterproofing membrane, new wall and floor tiles installed and re-installation of the shower screen and amenities." You mention beforehand you only wanted to remove the bottom 2 rows of the wall tiles. After speaking to the building expert about this, he strongly advises against this method as new waterproofing will need to be applied from floor-to-ceiling around the shower basin. Only taking off the 2 rows of tiles around the shower will cause more issues down the track. He said you should also be aware of this. Please let me know how you'd like to move forward, and if we can put a plan together before our next NCAT hearing on the 23rd, so we can present it to the member. [Our emphasis] Like I said, I trust the building expert's opinions as he has close to 25 years of experience in the industry. A lot of experience which I don't have. I am only trying to fix this the proper way. The way it should have been done from the beginning. 1. At the hearing of the appeal, Mr Varsani, initially, said that in communications with the respondent on the appeal before the hearing at first instance on 23 December 2022 he had not been told of that specific date for hearing. However, when shown the email he conceded that this was not correct. 2. When questioned by us, in this context, about his failure to attend the hearing on 23 December 2022 and to make enquiries of the Tribunal about provision of documents in respect of that hearing, he said he had not given this the attention he should have done and that he was expecting to receive a notice of that hearing from the Tribunal. He also said that he had not seen the notice from the Tribunal of that hearing, although, according to Mr Varsani, they must have been checking for documents sent to the registered office of the appellant during this period. This was not a reasonable explanation for his absence at the hearing on 23 December 2022. 3. There was no suggestion by Mr Varsani that the parties agreed on a "plan" to put forward to the Tribunal at the hearing on 23 December 2022, in response to the respondent's request in the email of 9 December 2022 for this to occur. There was no suggestion by Mr Varsani that the order made on 23 December 2022 was contrary to a specific settlement agreement made by the parties. A text message sent to the respondent by Mr Varsani on 5 January 2023, before Mr Varsani was, apparently, aware of the decision on 23 December 2022, provided by the respondent on the appeal, makes it clear that no resolution of the dispute had been arrived at before the hearing on 23 December 2022, because it states "… Can we resolve this matter". 4. As we have said, there was no appearance on behalf of the Builder at the hearing on 23 December 2022. On the Builder's behalf, Mr Varsani either deliberately chose not to appear and/or was careless in the protection of the Builder's interest in failing to do so, if he seriously wanted to defend the proceedings. 5. If the appellant considered that it required more time in which to provide an expert report in response to the expert evidence from the respondent, then Mr Varsani should have attended the hearing on 23 December 2022 and made an application to adjourn the hearing so as to allow more time to be given for the preparation of such an expert report. In saying this, we also note that there was no evidence presented by the appellant on appeal in support of any contention that it was unable to prepare an expert report in time for the hearing on 23 December 2022. 6. The Notice of Order in respect of the orders made on 23 December 2022, dated 23 December 2022, states that oral reasons for the decision were given by the Tribunal. The Notice also stated that a party could request a copy of the sound recording from the proceedings that day by contacting the Registry and paying the applicable fee. No sound recording or transcript of the reasons given by the Tribunal was provided by the appellant on the appeal. This was despite the direction made on 3 February 2023 for a typed transcript of the relevant parts of the hearing, together with the sound recording, to be lodged by the appellant, if oral reasons were given and/or what happened at the hearing at first instance was being relied upon. 7. This Notice of Order, dated 23 December 2022, was sent to the registered office of the appellant. 1. Under rule 35 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules), in proceedings in the Consumer and Commercial Division, the Tribunal is given express permission to proceed in the absence of a party who has failed to appear at the hearing where the Tribunal is satisfied that notice of the hearing has been duly served on the party: rule 35 (2) (a). We have no reason to conclude that the terms of this provision were not complied with. In this regard, we note that under rule 13 (2) (h) of the Rules, service of notices and documents upon a corporation may be given by service of a copy in any manner allowed by law. Under s109 X of the Corporations Act, service of a document upon a corporation may be given by sending the document by post to the registered office of the corporation. 2. In view of our findings about the procedural history, including our conclusions concerning the knowledge that Mr Varsani had about the proceedings, his knowledge of the manner in which important documents about the proceedings were being provided to the appellant, his knowledge of the hearing date on 23 December 2022 and his failure to appear on behalf of the appellant at the hearing on 23 December 2022, we consider that the appellant was afforded a reasonable opportunity to respond to the case against it. 3. With respect to the application for leave to appeal, for the same reasons we do not accept that the decision was not a fair and equitable one. Given the basis upon which it was said that the decision was against the weight of evidence and that there was significant new evidence that was not reasonably available at the time of the hearing, it also follows that we must reject these contentions. 4. We should mention one final matter concerning the appellant's case on appeal. At the hearing of the appeal, Mr Varsani presented a 13 page spiral folder of documents, which he said he had provided to the Appeals Registry on the day of the hearing. The respondent on the appeal said he had received the folder the evening before the appeal hearing. There was no material in this folder of documents that was capable of contradicting the respondent's case as to the defects in the tiling work and the extent of the work that was required to rectify these defects. No expert report was contained in this folder. To the extent that the appellant sought to rely on this material as significant new evidence within the terms of clause 12 of Schedule 4, we reject any such contention. Orders 1. For the above reasons, we made orders that: 1. To the extent that leave to appeal was required, leave is refused. 2. 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: 05 April 2023