Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lay v Soueidan [2023] NSWCATAP 310 Hearing dates: 2 November 2023 Date of orders: 23 November 2023 Decision date: 23 November 2023 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member A Lo Surdo SC, Senior Member Decision: 1. The appeal is allowed. 2. The order made by the Tribunal on 23 August 2023 is set aside. 3. The order made by the Tribunal on 4 August 2023 is varied so as to require that the respondent to this appeal is to pay the appellant the sum of $15,250 within 7 days of the day on which this decision is issued to the parties. Catchwords: APPEALS - appeal from decision made under Regulation 9 of the Civil and Administrative Tribunal Regulation 2022 setting aside orders made in the absence of the respondent to the appeal – ancillary decision – right of appeal on a question of law – adequacy of reasons – re-determination of set aside application by the Appeal Panel – discretionary considerations. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil and Administrative Tribunal Regulation 2022 (NSW) Cases Cited: Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141 Cominos v Di Rico [2016] NSWCATAP 5 Hammond v Ozzy's Cheapest Cars Pty Ltd [2015] NSWCATAP 65 Upton v Martin & Stein Antiques Pty Ltd [2016] NSWCATAP 228 Texts Cited: None cited Category: Principal judgment Parties: Roberto Lay (Appellant) Bilal Soueidan (Respondent) Representation: Roberto Lay (self represented) Bilal Soueidan (self represented) File Number(s): 2023/00278484 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: [2023] NSWCATCD Date of Decision: 28 August 2023 Before: S De Jersey, General Member File Number(s): GEN 23/36474 REASONS FOR DECISION 1. The appellant, Mr Lay, appeals from an order made by the Consumer and Commercial Division of the Tribunal on 23 August 2023 to set aside an order made by the Tribunal on 4 August 2023. The latter order was made in the absence of the respondent to the appeal, Mr Soueidan. It was an order that Mr Soueidan pay the appellant the sum of $15,250 within 7 days. 2. Within the required time, Mr Soueidan applied for an order under Regulation 9 of the Civil and Administrative Tribunal Regulation 2022 (NSW) that the order made on 4 August 2023 be set aside on the basis that it had been made in his absence. 3. After giving the parties an opportunity to make written submissions on the set-aside application, as is often the case, the Tribunal determined the application on the papers and decided that the order made on 4 August 2023 should be set aside. Mr Lay now appeals from that decision. 4. The set aside decision is an "ancillary" decision within the meaning of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act): see Hammond v Ozzy's Cheapest Cars Pty Ltd [2015] NSWCATAP 65 at [40]. 5. Accordingly, Mr Lay has a right of appeal from the decision on a question of law but otherwise requires leave to appeal: s 80 (2(b))of the NCAT Act. 6. As will be seen below, we consider that the Tribunal did not provide adequate reasons for the set-aside decision. Whether adequate reasons have been provided raises a question of law. Hence, we consider that the appeal should succeed in circumstances where the appellant does not require leave to appeal. Background 1. The dispute between Mr Lay and Mr Soueidan arises from residential building work carried out by the latter at Mr Lay's home. This involved the erection of a pergola. The work was completed in March 2016 following a rectification order made by NSW Fair Trading, dated 20 January 2016. The contract for the work had been entered into in May 2014. 2. Mr Lay did not commence legal proceedings in the Tribunal against Mr Soueidan until 26 April 2023 (proceedings GEN 23/19294). In his application commencing those proceedings he sought compensation in the amount of $15,250. 3. In determining this appeal, we have had access to the Tribunal's file concerning those proceedings. 4. The following facts are uncontroversial: 1. By letter dated 19 April 2022, Mr Lay informed Mr Soueidan that significant rainfall in Sydney over the previous 2 years had caused some severe damage to the ceiling under the pergola, an insurance claim had been made in respect of this damage and it was Mr Lay's view that the assessor from the insurance company would conclude that there was an inherent defect in the pergola's roofing design/build. 2. The insurer arranged for a report from an engineer in respect of the claim. This was issued by Struckability Consulting Engineers on or about 5 July 2022. 3. The report from the engineers contained the following conclusions: i. The water ingress into the lower ground floor is consistent with original defective workmanship contrary to applicable building codes and standards, including no weep holes/cavity flashing, and inadequately sealed masonry parapets. ii. Dye testing should be performed to the first floor rear balcony slab to confirm if the recently replaced waterproofing membrane has been installed adequately. iii. The water damage to the alfresco soffit lining is consistent with defective workmanship contrary to suppliers design guides/specifications, namely, inadequate roof fall and premature termination/detailing of the roof sheet to the guttering. 1. By an email from the Building & Construction Compliance section of NSW Fair Trading on 24 October 2022, which was copied to Mr Lay, Mr Soueidan was sent a copy of the engineer's report and he was informed that the report indicated a building fault rather than an insurable event, which could be "readily addressed by increasing the fall on the roof sheets, by modifying the battens or by replacing the roof sheets with an appropriate profile". Amongst other things, the email went on to say that the author had passed on Mr Souedian's willingness to address the issue. It was also said in the email that whilst the statutory warranties under the Home Building Act had expired, Mr Lay had "ongoing warranty protection under the Australian Consumer Law". 2. Despite communications from Mr Soueidan to Mr Lay indicating that he would carry out rectification work, this did not occur and, as a consequence, Mr Lay commenced the Tribunal proceedings in April 2023. 3. On 23 May 2023, the parties attended a first hearing of the Tribunal proceedings. At this hearing directions were made for the conduct of those proceedings, including that Mr Lay was to provide Mr Soueidan with a copy of the documents he relied upon by 6 June 2023 and Mr Soueidan was to provide the documents upon which he intended to rely by 20 June 2023. 4. On 30 May 2023, Mr Lay sent an email to Mr Soueidan attaching a soft copy of his hearing documents and stated that a hard copy of the documents had been mailed to Mr Soueidan's home address. At that time, and at all relevant times up until 7 October 2023, Mr Soueidan's home address was an address in Bexley, Sydney. Mr Lay's documents included two quotes-one from Avalon Building Group, dated 17 March 2023, for the sum of $13,750, inclusive of GST, and the other quote from M-Tech Roofing Services, dated 20 March 2023, for the sum of $8,800, inclusive of GST. 5. The quote from M-Tech Roofing Services was concerned only with roof sheet work, raising the degrees of the roof and fixing the gutter. It did not extend to the installation of installation sarking and downpipes, the removal of existing gyprock and the supply and installation of new gyprock. 6. By "Notice of hearing-in person", dated 24 May 2023, the parties were notified that the matter had been fixed for a three-hour hearing on 4 August 2023 at 1:15 p.m. 1. Mr Lay's application referred to the above two quotes from MTech Roofing Services and Avalon Building Group, stated that the MTech Roofing quote was just for the roofing, whilst the Avalon Building Group quote was for roofing and ceiling, so that his claim was for the $13,750 amount, along with another $1,500 for a skip bin. 2. Mr Soueidan provided no documents in response to Mr Lay's documentary material, despite the Tribunal's direction for him to do so. 3. Mr Soueidan did not attend the hearing on 4 August 2023. He did not suggest that he did not receive the notice of hearing on 4 August 2023 (it was sent to his address in Bexley) but said he had, incorrectly, diarised the date of the hearing as being 15 August 2023. The Tribunal's decision on 4 August 2023 1. On 4 August 2023, the Tribunal determined the claim in Mr Lay's favour in the absence of Mr Soueidan. It gave written reasons for its decision. As to this, we note that under r 35 (2) (a) of the Civil and Administrative Tribunal Rules 2014 (NSW), the Consumer and Commercial Division of the Tribunal is, specifically, empowered to proceed to hear proceedings in the absence of a party who has "failed" to attend the hearing if the Tribunal is satisfied that notice of the hearing was duly served on the party. 2. The written reasons of the Tribunal included: 1. Reference to the engineer's report and that Mr Soueidan had not filed any evidence. 2. A conclusion that the Tribunal could determine the consumer claim under the Australian Consumer Law because it had been brought within 3 years of the consumer first becoming aware of the defects referred to in the engineer's report but the claim under the Home Building Act was out of time. 3. A conclusion that the respondent had carried out defective work based upon the engineer's report. 4. A conclusion that the respondent's claim for $15,250 was supported by the two quotes plus a cost of $1,500 for two skip bins. Application to set aside the 4 August 2023 decision 1. Under Regulation 9 of the Civil and Administrative Tribunal Regulations 2022 (NSW), a party may apply, within 7 days of a decision, to set aside the decision in circumstances where the decision has been made in the absence of the Party. Regulation 9, relevantly, provides: 9 Additional power to set aside or vary decision determining proceedings—the Act, s 90(2)(a) (1) In addition to a power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if— ….. (b) the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. 1. On 8 August 2023, Mr Soueidan lodged a Regulation 9 application to set aside the 4 August 2023 decision (proceedings GEN 23/36474). In his application he made four points as follows: 1. I missed the hearing as I was mistaken with hearing date. 2. Work was done more than 7 years [ago]. 3. Not sure if other people were engaged to do work at the property. 4. The quotes the respondent get (sic) are much higher than the work to be done. 1. There were two deficiencies with the set aside application. First, Mr Soueidan did not complete Section E (ii). This asked that he provide a summary of the case (evidence and arguments) he would have put to the Tribunal if he had not been absent and attach any supporting documents. Secondly, he did not complete the Statutory Declaration attached to the application form - the form stated that this should be completed to assist the Tribunal in assessing his application. 2. We have had access to the Tribunal file in the set-aside proceedings for the purpose of determining this appeal. 3. On 10 August 2023, the Tribunal ordered that the order for payment of money made on 4 August 2023 be stayed until further order and made directions that Mr Soueidan make any submissions in support of his set aside application by 15 August 2023 and that Mr Lay make any submissions in reply by 21 August 2023. Mr Soueidan was sent a Notice of that order and directions to his email address given in the set-aside application. 4. Mr Soueidan made no submissions, as provided for in the 10 August 2023 directions. On the other hand, Mr Lay provided the Tribunal with a written submission sent on 19 August 2023 in which he asked that the set-aside application be dismissed. In addition to various other submissions, in his submissions Mr Lay said: 1. Mr Soueidan's disposition has been to delay, resist and disregard engaging with Mr Lay and the Tribunal throughout the dispute. 2. Mr Soueidan had been offered the opportunity to present his case to the Tribunal but had failed to submit evidence, his absence at the hearing would have made no difference and he had not suffered any injustice. 3. Mr Soueidan was first notified of this dispute in about May 2022. Mr Lay was entitled to a quick and efficient resolution of the dispute. 1. On 23 August 2023, the Tribunal ordered that the payment order made on 4 August 2023 be set aside. It gave the following reasons: In the exercise of discretion, the Tribunal is satisfied that it is appropriate to set aside the decision because the decision ought be made on the merits with both parties being present at the hearing to put their case defence. 1. Plainly, it was implicit in this decision that the Tribunal was satisfied that the two conditions in Regulation 9(1)(b) for enlivening the discretion to set aside had been established, namely that the decision had been made in Mr Soueidan's absence and that this had resulted in his case not being adequately put to the Tribunal. 2. We consider that the Tribunal was correct about these two aspects. However, as outlined below, there were important discretionary factors pointing against a decision in Mr Soueidan's favour. The discretionary aspect of Regulation 9 1. The Appeal Panel in Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 examined the discretionary aspect of the power to set aside in Regulation 9 and stated: 76.The central question in exercising the discretion is whether there is a real likelihood that it would be unjust to let the decision sought to be set aside stand. If so, it should be set aside on such terms as will minimise the possibility of injustice to the party which had obtained the original decision in its favour…. 77.Justice generally requires that parties against whom orders are made must be given a reasonable opportunity of appearing and presenting their case: Cameron v Cole (1944) 68 CLR 571 at 589. In the Tribunal, s 38(5)(c) of the Act provides: (5) The Tribunal is to take such measures as are reasonably practicable: … (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. 78.If a party has been given such an opportunity, however, and has deliberately not taken it, there may well be no relevant injustice if the decision is allowed to stand: see, for example, CMT [2014] NSWCATGD 11 at [68(a)]. In this regard, the issue of why the party was absent from the hearing may be very significant: see, for example, Homeark Constructions v Hillside Excavations [2014] NSWCATAP 77 at [37], [39] and [40]. 79.Injustice will only be likely to result if the party seeking to set aside the decision has an arguable defence or an arguable case that a different decision could have been reached. If not, setting aside the decision would be futile. See, in a different but related context, Kyriakou v Long [2013] NSWSC 1890 at [33] and [55], approved on appeal in Kyriakou v Long [2014] NSWCA 308 at [18]. Section 38(4) of the Act is consistent with this approach, in that it requires the Tribunal to act according to the substantial merits of the case without regard to technicalities or legal forms. 80.In summary, when exercising the discretion conferred by cl 9(1)(b), the Tribunal should direct its attention to whether there would be a real likelihood of injustice if the decision was allowed to stand. Relevant considerations will generally include: 1.Why the party was absent and whether the absent party had a reasonable opportunity to be heard or otherwise have its submissions considered in the proceedings; and 2.Whether the absent party has an arguable defence or an arguable case that a different decision could have been reached. Conduct of the appeal 1. The appeal was lodged on 1 September 2023. 2. On 13 September 2023 the parties attended (in-person) a directions hearing in respect of the conduct of the appeal. On this occasion directions were made for the provision of documentary material, including, submissions in advance of the hearing of the appeal and the hearing of the appeal was set down for 2 November 2023 at 10:15 a.m. 3. In accordance with these directions, Mr Soueidan provided a Reply to Appeal lodged on 19 September 2023. This document included a response to the appellant's grounds of appeal in the following terms: • Decision was made during my absence and I didn't get the chance to reply. • The quotes were only provided from Appellant side. • Warranty of the job expired. • Mistaken in hearing date. 1. However, although Mr Lay provided his documentary material in support of his appeal in accordance with the directions, no responsive documentary material, including, written submissions was provided by Mr Soueidan - this material was due by 18 October 2023. It was uncontroversial that Mr Soueidan received an email from Mr Lay, sent on 23 October 2023, which pointed out that Mr Soueidan had not complied with the requirement to provide his documentary material and invited a response. None was received. 2. At the hearing of the appeal, at which Mr Soueidan appeared by telephone in the circumstances described below, when asked why he had not provided any material in respect of the appeal (beyond the Reply), Mr Soueidan had no explanation for this omission. 3. There was no appearance from Mr Soueidan at the commencement of the hearing of the appeal. We contacted him on his mobile phone. He said he was not aware of the hearing date and informed us that he had changed his home address on 7 October 2023. It appeared from the appeal file that written notice of the appeal directions made on 13 September 2023, including notice of the appeal hearing had been sent to his old address. When it was pointed out to him that he had been present at the directions hearing on 13 September 2023 when the appeal date was fixed, Mr Soueidan conceded that he may have been aware of this but said he had expected he would receive written notice of the hearing date. 4. Mr Soueidan told us that he was due at Bankstown Hospital for an endoscopy that afternoon and he would need to leave home at 12:30 pm (he confirmed that he had been waitlisted for this procedure by emailing us a letter from the hospital and told us he had received the news of the appointment that afternoon by telephone). 5. He requested an adjournment of the hearing of the appeal in order to allow more time to provide his written material and to attend the hearing in person. He also told us that he was free to proceed to appear at the hearing by telephone. We decided to refuse his adjournment application. We considered that it was the interests of justice and consistent with the guiding principle in s 36 of the NCAT Act that we do so, given that he had ample opportunity to provide his documentary material before the hearing of the appeal, he had been made aware of the date of the hearing, he was available to appear by telephone, and there was prejudice to the appellant and disruption to the processes of the Tribunal by delay. Steps taken in the reopened proceedings 1. In the reopened proceedings resulting from the set aside order (GEN 23/38535), a first hearing took place on 12 September 2023. Mr Soueidan appeared at that hearing. Mr Lay requested an adjournment of that hearing because of his appeal against the set aside order on the basis that the outcome of the appeal should be determined before any hearing of the reopened proceedings took place. 2. At the hearing on 12 September 2023, the Tribunal ordered that the reopened proceedings be adjourned to a date to be fixed by the Registrar. Mr Soueidan was directed to provide a copy of all the documents upon which he relied in the proceedings by 10 October 2023. This followed a direction for Mr Lay to provide Mr Soueidan with an exact copy of the bundle he had relied upon for the hearing on 4 August 2023 by 19 September 2023 (by email). 3. 36. Mr Lay complied with the above direction but Mr Soueidan did not comply with the direction for him to supply his documents. At the hearing of the appeal we were informed he had still not supplied any such documents and he provided no satisfactory explanation for his failure to take this step. The appeal 1. As we have already said, the appellant has a right of appeal against this ancillary decision on a question of law but otherwise required leave to appeal. 2. In respect of a self-represented, non-legally trained appellant, grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised (Cominos v Di Rico [2016] NSWCATAP 5 at [13]). 3. In his Notice of Appeal, Mr Lay made a number of points, including that the set aside decision in favour of Mr Soueidan should not have been made in circumstances where his absence did not affect the outcome, he had not put forward any supporting evidence either at the substantive hearing or on the set-aside application and this should have formed part of the Tribunal's reasoning, but it did not do so, the Tribunal should not have acted in favour of Mr Soueidan in circumstances where he had been inattentive to the date set for the hearing and he had had an opportunity to present his case. 4. These are all respectable points for Mr Lay to have made but they raise the anterior question as to what was the reasoning process of the Tribunal behind its conclusion that there ought to be a decision on the merits with both parties being present - a problem that the Appeal Panel identified and upheld in Hammond (see at [43]-[47]), albeit concerning different facts. 5. On the question in issue, the Tribunal's reasons did not need to be extensive but they needed to expose the pertinent findings concerning the discretionary factors involved, including how it could be said that Mr Soueidan had an arguable defence. We consider that the Tribunal erred in law in this regard, with the consequence that the appeal should be allowed and the decision set-aside. 6. As occurred in Hammond, we consider that the appropriate course is for us to proceed to deal with the appeal by way of a new hearing of the application to set aside, as permitted by s 80(3)(a) of the NCAT Act. This is a course that we raised with the parties at the hearing of the appeal. Neither party objected to us taking that approach. New determination of the set-aside application 1. For the purpose of making a new determination of the set-aside application, the Appeal Panel has before it Mr Soueidan's original set-aside application (lodged on 8 August 2023), the documents in the Tribunal's file concerning that application, the documents in the Tribunal's file concerning Mr Lay's application for damages (lodged on 26 April 2023) and the documents in the Tribunal's file concerning the reopened proceedings following Mr Soueidan's successful set-aside application. 2. We also received oral submissions from both parties. In his oral submissions Mr Soueidan emphasised the following matters: 1. He had incorrectly diarised the date of the hearing. 2. He contended that Mr Lay's claim had exaggerated the true repair costs. 3. The work had been done more than seven years ago and the warranty for the work had expired. 4. The work on the roof was not his work-he had done the framing work only. 5. He would like to have a further opportunity to inspect the defects and obtain quotes for the repair work. 1. As we have indicated, we accept that the two conditions for enlivening the discretion to set aside the decision under Regulation 9 have been satisfied, namely that the decision was made in the absence of Mr Soueidan and that his absence resulted in his case not being adequately put to the Tribunal. 2. However, having regard to the discretionary aspect of our determination, we do not consider that there would be a real likelihood of injustice if the Tribunal's decision made on 4 August 2023 was allowed to stand. 3. As to this, first and foremost, we are not persuaded that Mr Soueidan has an arguable defence to the claim that was upheld by the Tribunal. 4. As to the question of liability under the Australian Consumer Law (NSW) (ACL), Mr Lay had a claim for damages under s 267(4) for breach of the statutory guarantee in s 60 of the ACL that the services supplied by Mr Soueidan would be rendered with due care and skill. 5. Leaving aside for the moment the question whether the time for bringing such a claim had expired, there were only two matters that were raised by Mr Soueidan concerning such liability. First, for all he knew the defects had resulted from work done since carrying out his building contract with Mr Lay. Secondly, the defective roofing work was carried out by another party. 6. However, Mr Soueidan presented no material that would justify an inference that the defects resulted from work done by others subsequent to the building work that he carried out for Mr Lay. Also, during oral submissions, Mr Soueidan accepted that the roofing work was carried out by his sub-contractor as part of his performance of the building contract with Mr Lay. Accordingly, these points concerning liability have no merit. 7. With respect to the question concerning the expiry of time for making the claim, the relevant time limitation is that contained in s 79L of the FairTrading Act 1987 (NSW), which, relevantly, provides: 79L Limitation periods (1) The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply— (a) the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged, (b) the goods or services to which the claim relates were supplied (or, if made in instalments, were last supplied) to the claimant more than 10 years before the date on which the claim is lodged. 1. Plainly, s 79L(1)(b) is not applicable. 2. Nor does it appear that s 79L(1)(a) is applicable because it was an essential element of Mr Lay's cause of action that he suffer loss or damage as a result of the breach of the guarantee and it seems likely that this did not occur until he became aware of the relevant defective work through the engineer's report issued in July 2022. Hence, on the material we have seen it would appear that his cause of action under s 267(4) did not accrue until this time because he did not suffer loss or damage until he first knew of the defective work or could with reasonable diligence have discovered this: see Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141 at [42], [53],[55],[64]-[66] and Upton v Martin & Stein Antiques Pty Ltd [2016] NSWCATAP 228 at [49] – [54]. 3. As to the quantum of Mr Lay's claim for loss, Mr Soueidan has never presented any evidentiary material which challenges the quotation evidence put forward by Mr Lay. He has had every opportunity to do so. He did not present any such evidence in the proceedings determined on 4 August 2023, nor in the set-aside proceedings, nor in the reopened proceedings, nor on appeal. 4. Further in relation to the discretionary aspect of the set-aside application, although not decisive in themselves, we consider that two other matters also operate against upholding Mr Soueidan's set-aside application. First, Mr Soueidan had a reasonable opportunity to set out and support such case as he believed he had against Mr Lay's claim in written material well before the hearing on 4 August 2023, but failed to take this opportunity. Secondly, we consider that Mr Soueidan has given insufficient attention to the importance of the proceedings and to the need to comply with the procedures of the Tribunal, as emerges from the various steps that he has not taken in each of the three Tribunal proceedings, as outlined above, including his non-appearance at the hearing on 4 August 2023. Orders 1. For the above reasons, we make the following orders: 1. The appeal is allowed. 2. The order made by the Tribunal on 23 August 2023 is set aside. 3. The order made by the Tribunal on 4 August 2023 is varied so as to require that the sum of $15,250 is to be paid by the respondent to this appeal to the appellant within 7 days of the date upon which this decision is issued to the parties. ********** 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: 23 November 2023