Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Singh v Zamaneh [2023] NSWCATAP 248 Hearing dates: 2 May 2023 Date of orders: 30 August 2023 Decision date: 30 August 2023 Jurisdiction: Appeal Panel Before: S Thode, Principal Member J S Currie, Senior Member Decision: 1. Leave to appeal refused. 2. Appeal dismissed. Catchwords: APPEALS – error on a question of law – denial of procedural fairness not established - no misapplication of law Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) sections 36 (3), 80 (2), Schedule 4 Clause 12 (1). Home Building Act 1989 (NSW) sections 4, 7, 18B, 92 and 94 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Jai Singh (Appellant) Vahid Zarei Zamaneh (Respondent) Representation: Appellant (Self-represented) Respondent (Self-represented) File Number(s): 2023/00070017 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Nil Date of Decision: 10 February 2023 Before: L Wilson, Senior Member File Number(s): HB 22/53686 reasons for decision What is this appeal about? 1. This appeal arises from a decision made on 10 February 2023 in the Consumer and Commercial Division of the Tribunal concerning residential building work, being roofing work, at a property at Moorebank owned by the appellant, Mr Jai Dhir Singh (the Owner) which was to be carried out by the respondent, Mr Vahid (Victor) Zameneh (the Builder). 2. In the Notice of Order dated 10 February 2023 the Tribunal declared that $2,200 was not due and payable by the Owner to the Builder in respect of "uninsured and unlicensed work pursuant to a contract which did not comply with the Home Building Act s.7 or at all" and dismissed the Owner's application for a money order because the Owner had not proved his case. 3. In the reasons for decision (the Reasons) the Tribunal relevantly made the following findings : 1. the contract sum of the building contract was $37,000 without GST to be added; 2. the terms of the contract required the Builder to replace "the board of ceiling and tiled roof to metal roof including materials and guttering"; 3. the Builder had done work for which he was not appropriately licensed; 4. the Owner's assertion that because he was an engineer, his evidence concerning the breach was sufficient was not accepted; 5. it was not clear what work the Builder did or contracted to do; 6. the Tribunal was not satisfied that the Builder breached the contract; and even if it had found that he had, there was no evidence of the loss or damage which flowed to the Owner; 7. because the Builder had not lodged a cross-application or any application against the Owner, he could not, in those proceedings, obtain an order against the Owner; and 8. it appeared that the Builder was not entitled to any payment from the Owner because he had not complied with sections 4, 7, 92, and 94 of the Home Building Act 1989 (NSW) (the HB Act).; and that was the basis of the Tribunal's declaration above that that $2,200 ( being the balance which the Owner had conceded was owing) was not properly due and payable by the Owner to the Builder. 1. The Tribunal Member's calculation of that $2,200 arises from the following observations and findings by her: 1. the original agreed contract price was $37,700, of which $31,500 had been paid; leaving a balance of $6,200; 2. the Owner had asserted at the Tribunal hearing that, on or about 14 September 2022 the parties had varied the contract by agreeing to reduce the scope of the works to remove painting and electrical work and to reduce the contract sum by $4,400, so that the revised contract sum was $33,300; 3. that variation was recorded by the Owner in an email of 14 September 2022, but the Builder had never replied to that email and at the hearing he denied that a variation to the contract had been made; 4. the Owner had conceded that the Builder had not agreed to the reduction in the works by an amount which the Reasons record as "$4000" (on page 2 at the 7th paragraph); and 5. as the Member recorded on page 3 at the 4th paragraph of the Reasons, the Owner agreed that he still owed the Builder $6,200 less the $4,000 reduction (on the basis of the variation which the Tribunal did not find or accept) so the Owner had agreed that $2,200 was still owing. The appeal 1. By his Notice of Appeal the Owner seeks the Tribunal's orders to be set aside and that orders be made requiring the Builder to refund all moneys which the Owner had paid to him. The Notice of Appeal attaches supporting documentation, in which, under the heading "Reason for Appeal", the Owner describes his grounds for appeal, including asserted errors of law and grounds for leave to appeal. 2. On the basis of that document and what the Owner told us at the appeal hearing, we understand him to assert that the Tribunal denied him procedural fairness, identified the wrong issue and applied the wrong law. The Owner also seeks leave to appeal on the grounds that the decision of the Tribunal was not fair and equitable, that it was against the weight of the evidence and that significant new evidence is now available which was not reasonably available at the time of the hearing. 3. The issues for determination in the appeal are therefore: 1. whether the Tribunal erred by failing to afford the Owner procedural fairness, by identifying the wrong issues or by applying the wrong law; and 2. whether leave to appeal should be granted on any of the grounds asserted by the Owner. 1. For the reasons below, we have decided that the Tribunal did not make an error on a question of law, that leave to appeal should be refused and the appeal dismissed. The relevant law: nature and scope of NCAT appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act). 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 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; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in clause 12 (1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen, being evidence that was not reasonably available at the time of the hearing of the proceedings under appeal. 1. In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of clause 12 (1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, at [84], the Appeal Panel stated that ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result The Owner's case on appeal 1. In order to understand the Owner's grounds we rely upon his Notice of Appeal, the notes attached to it headed "Reasons for Appeal" and his oral submissions at the appeal hearing. The Owner submits that the Tribunal was in error because there were procedural irregularities at the hearing which were unfair to him and led to an unjust result and that the Tribunal Member identified the wrong issue or applied the wrong law. He claimed to be entitled to leave to appeal because the Tribunal's decision was against the weight of the evidence and that there existed significant new evidence which was not reasonably available to the Tribunal at the time of the hearing. The Builder's case on appeal 1. The Builder's case on appeal is expressed succinctly in his Reply and by what he told us at the appeal hearing. He supports the decision reached by the Tribunal . CONSIDERATION 1. The Owner challenges both an order made in his favour; that is the declaration that the sum of $2,200 is not due and owing by the Owner to the Builder. The Owner also challenges the Tribunal's refusal of his application for a money order for $4,540, being his asserted "loss or damages". 2. As noted briefly above, we understand the Owner's case to be that the Tribunal erred at law, so that he is entitled as of right to bring his appeal. However we are not persuaded that the Owner has demonstrated any error on a question of law by the Tribunal, for the following reasons. Error of Law - Procedural Unfairness 1. The Owner makes much of his assertion that the Tribunal Member did not allow him a fair hearing. He spent substantial time on that in his oral submissions to us. At pages 14 and 17 of his written submissions he particularises the asserted error as follows: (At page 14):The Tribunal erred in Law throughout the proceeding in… not having the correct hearing procedures… (At page 17):The Tribunal did not follow the laid down procedure for the hearing. She did not allow the (Owner) to present his case…(or) to ask any question in cross-examination. The Tribunal recorded everything the (Builder) said without proof or evidence. This includes not receiving (the Owner's) documents…I was not allowed to ask any question of the (Builder) or seek clarification from the Tribunal. 1. We have decided that no error on a question of law arises from this ground, for the following reasons. 2. Section 36 (3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) imposes on each party to proceedings a duty to comply with all directions and orders of the Tribunal. 3. The usual procedure adopted in appeals call overs is that the parties are told that they need to provide the sound recording and a transcript of the Tribunal hearing if a procedural unfairness ground is to be raised on appeal. A standard form order is made in this regard. 4. At the call over of this appeal on 15 March 2023, in which the Owner participated by videoconference, the following order was made: 2. The Appellant is to lodge with the Appeal Registry and to give the Respondent by 05 April 2023:… (d) If …what happened at the hearing at first instance is being relied on by the Appellant on appeal, a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing. 1. A copy of the orders made on 15 March 2023 was sent to each of the parties to this appeal, twice. Contrary to the order, the Owner did not provide the sound recording or a typed transcript of the Tribunal hearing. 2. When we drew to the Owner's attention the absence of either the recording or a transcript, his explanation for his failure to comply with the Tribunal's order was in these terms: When the Tribunal has done something wrong…it (is) the duty of the Tribunal to provide you with that…because (the proceedings) are against the Tribunal it is (the Tribunal's) duty to provide all the evidence. 1. That explanation is misconceived. It is contrary to the express order made by the Tribunal. 2. The effect of the Owner's failure to comply with the order is that we have no recording of the hearing and no transcript as directed. Accordingly, we are not satisfied that the Owner has established that Tribunal denied him procedural fairness. 3. The Owner made, and we heard, all of the submissions he desired to make on the appeal, albeit some were made orally for the first time at the appeal hearing. The Owner has not established that he was denied procedural fairness. 4. This ground of appeal fails. Error of Law - Identification of the wrong issue, application of the wrong law 1. Although the grounds on which the Owner contends that the Tribunal made an error on a question of law are not clearly expressed, the relevant sections of his stated "Reasons for Appeal" include the following: The Tribunal… erred in Law…in the following way: …2.In Application of the Buildings Act 1989 (sic) or non-application of it…(it) allowed an unlicensed person to continue the hearing without confirming the status of the Respondent. …7.In inability of the Tribunal to understand the implication and actual application of the law as specified in the Buildings Act 1989 (sic) regarding who can solicit for work, who can ask for money, and receive it and prohibited action of misrepresentation…. …11. Inability of the Tribunal to understand and to calculate the losses suffered by the (Owner) under the following acts or Guides (a) The Building Act of 1989 (sic) (b) Building Code of Australia (c) Guide to Standards and Tolerances 2017 NSW (d) Fair Trading Building Defect Complaint… 1. We assume that the "Building Act" and "Buildings Act" refers to the Home Building Act 1989 (NSW) (the HB Act). 2. The Owner's formulation of this ground lacks clarity, but on a suitably generous construction, given that he is not legally qualified or represented, we understand the Owner to contend that: 1. the Tribunal erred by determining the contractual rights between the parties and making findings as to the contract sum, the terms of the contract, the variations to it and the absence of breach by the Builder (that is, what might be described as the contractual aspects of the case); and in basing its order on that determination of the contractual aspects; and 2. in so doing, the Tribunal ignored the fact that the Builder was not licenced to carry out the contracted building work and, as an unlicenced person, was not capable of entering or enforcing the building contract. 1. The Owner needs to demonstrate an error on question of law or an error for which the leave to the Appeal Panel is required. 2. The Owner fails to do that. There is no substance to this ground. 3. The Tribunal Member's decision consisted of a declaration that $2,200 is not owing by the Owner to the Builder. We have set out the process by which the Tribunal Member arrived at that figure above at [4]. The Tribunal Member has recorded what she was told at the hearing, including by way of admission by the Owner himself as to the amount outstanding and we do not perceive any error of law to have arisen from the process adopted by the Tribunal Member as described at [4] above. 4. The Tribunal Member also found that: 1. the Owner's evidence about the Builder's breaches, consisting of two emails, photos and handwritten notes by the Owner, was insufficient to establish that the Builder breached the contract or any of the statutory warranties in section 18B of the HB Act; 2. the Owner's assertion that he was an engineer and that therefore his evidence of breach should be accepted was insufficient to establish breach. The Tribunal Member correctly observed that the Owner's evidence amounted only to a submission about the work done; 3. there was insufficient evidence presented by the Owner to establish a clear scope of work; and 4. the Owner was unable to demonstrate any evidence of the rectification or completion costs. 1. The Tribunal concluded that it could not be satisfied on the evidence that the Builder had breached the contract, but even if he had, that there was no evidence of the loss or damage which flowed to the Owner. 2. In our view, given the findings as to the evidence, each of those conclusions was clearly open to the Tribunal, particularly in the absence of evidence in the form of independent expert evidence to prove on the balance of probabilities that the Owner suffered loss and damage by reason of any breach of the statutory warranties by the Builder. 3. The Tribunal found that the Owner had acknowledged that the balance of $2,200 remained owing; that the Builder had not lodged an application claiming entitlement to payment and that it appeared that the Builder was not entitled to any payment from the Owner because he did not comply with at least sections 4, 7, 92 and 94 of the HB Act. By reason of the acknowledgment that the Builder was unlicensed and uninsured for the work, the Tribunal disposed of the matter by relieving the Owner from any obligation to pay the Builder the $2,200. We see no error in the Tribunal's decision in this regard. The order made was open to the Tribunal. The Owner has not established that the Tribunal identified a wrong issue or applied the law incorrectly. 4. This ground fails. Conclusion as to errors on a question of law 1. The Owner has failed to establish an error on a question of law. Owner's application for leave to appeal 1. We are not satisfied that the Owner has established that he may have suffered a substantial miscarriage of justice for one or more of the reasons set out in clause 12 (1) of Schedule 4 of the NCAT Act, which are set out in [10] above. 2. Even if the Owner had established a basis for leave to appeal, we would not grant leave to appeal as none of the factors set out in Collins v Urban (see [13] above) apply in this case. 3. For completeness we deal with the Owner's claim that leave should be granted because new evidence is now available that was not reasonably available at the time of the hearing. The Owner's description of the new evidence which is now available refers us to "extra/ separate which has become available notes and annexures" attached to his Notice of Appeal. Having examined that bundle of material, there is nothing in it which is new evidence which could not have been obtained with reasonable diligence at the time of the hearing. 4. In particular, the Owner's statement dated 21 April 2023, which is within that bundle and on which he relies, is not new evidence but more accurately a late submission as to the facts. 5. Leave to appeal is accordingly refused. Conclusion 1. It follows that the appeal has failed and will be dismissed. ORDERS 1. Leave to appeal refused. 2. Appeal 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: 30 August 2023