Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ilhan v Easy Automatic Gate Pty Ltd [2024] NSWCATAP 150 Hearing dates: 01 July 2024 Date of orders: 02 August 2024 Decision date: 02 August 2024 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President G Blake AM SC, Senior Member Decision: (1) Leave to appeal is refused and the appeal is dismissed. (2) Subject to order (3), there is no order as to the costs of the appeal. (3) If any party wishes to make an application to vary order (2) above, the applicant (the costs applicant) is to file and serve a costs application, including submissions limited to three pages and any evidence in support, within 14 days from the date of this decision, whereupon order (2) will cease to have effect. (4) The respondent to the costs application is to file and serve any submissions limited to three pages and any evidence in opposition within 28 days from the date of this decision. (5) The costs applicant is to file any submissions in reply limited to two pages within 35 days from the date of this decision. Catchwords: APPEALS - Constructive failure to exercise jurisdiction - No material error of law - Appeal dismissed APPEALS - Leave to appeal - Principles governing - Leave to appeal refused APPEALS - Procedural fairness - Failure of the builder to strictly comply with procedural orders - Appeal dismissed BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) - Building dispute - Where breach of statutory warranties by the builder not established Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 80, 81, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014, rr 25, 38A Home Building Act 1989 (NSW), ss 4, 7AAA, 10, 18B Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10 Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 Goode v Angland (2017) 96 NSWLR 503 [2017] NSWCA 311 Inventbuild Pty Ltd v Tulemis [2024] NSWCATAP 49 Italiano v Carbone & Ors [2005] NSWCA 177 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Sinha v NSW Land and Housing Corporation [2024] NSWCATAP 130 Steelbond Australia Pty Ltd v Wein [2024] NSWCATAP 20 X-Build Construction Services Pty Ltd v O'Rourke [2020] NSWCATAP 181 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: None cited Category: Principal judgment Parties: Jerene Ilhan (Appellant) Easy Automatic Gate Pty Ltd (Respondent) Representation: Appellant (self-represented) Solicitors: ANB Lawyers (Respondent) File Number(s): 2024/00157793 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 20 March 2024 Before: S Smith, General Member File Number(s): 2023/00382537 (previously HB 23/35055) REASONS FOR DECISION Overview 1. This is an internal appeal from the decision of the Consumer and Commercial Division of the Tribunal made on 20 March 2024 in proceedings under the Home Building Act 1989 (NSW) (HB Act) concerning a dispute between the appellant, Jerene Ilhan (the owner), who is the owner of a property at Roseville in New South Wales (the property), and the respondent, Easy Automatic Gate Pty Ltd (the builder), which is the builder that carried out residential building works at the property (the works) under the building contract between them (the building contract). In the decision the Tribunal dismissed the application of the owner. 2. The works involved the installation of an automatic gate at the front of the property and the erection of a fence on part of the boundary on one side of the property. 3. The principal issues in the appeal were whether the Tribunal failed to afford procedural fairness to the owner, constructively failed to exercise its jurisdiction of the Tribunal and was in error in finding that the owner had not established that the works were defective. 4. As we are not satisfied that the Tribunal made any error, we have refused leave to appeal, dismissed the appeal, made no order as to the costs of the appeal, and made procedural orders in respect of any application for a different costs order. The factual background 1. When facing the property from the street: 1. the front southern boundary slopes downwards from the right-hand side to the left-hand side and downwards towards the dwelling on the property and adjacent pergola on the right-hand side; 2. there is a fence on the front boundary which was erected prior to entry into the building contract comprising four rendered pillars at a height of approximately one metre. Three pillars are on the left-hand side, then a driveway and one on the right-hand side. There is a black metal fence between each of the three pillars on the left-hand side constructed with horizontal top and bottom rails and vertical rails with a twist or knuckle at the half way point at intervals of approximately 10 cm to 15 cm; 3. the driveway is constructed of uneven cobblestones and provides pedestrian access to the dwelling; 4. the first part of the right-hand side boundary runs between the front pillar to a rendered pillar approximately two metres high which is part of the pergola. 1. On or shortly after 14 June 2022, the builder and the owner entered into the building contract which was in the form of Quote # QT1731 of "Easy Automatic Gates" dated 14 June 2022 addressed to "Jerene (Roseville)" in the amount of $8,720.00 exclusive of GST for the construction of the works which relevantly included the following information (the EAG quote): Product ID Description Qty UM Amount 01 Aluminium sliding gate (approx.4m x 790) in tubular design with knuckle matching similar with handrail+ hardware + powder coating + supply install $4,000.00 02 Italian brand sliding gate motor kit+ x2 remotes + supply install $1,350.00 03 Aluminium fence in same design as gate (approx.9.5 x 650) & (aprox. 2.7 x 650)+ powder coating + supply install 2 $2,670.00 04 Customised umbrella post $400.00 05 Steel runoff & motor pad $300.00 1. On 29 July 2022, the builder carried out the works which included installing a fabricated rectangular gate, affixing a metal track to the cobblestone driveway on which the wheels of the gate travelled, and a stepped rectangular side fence on the first part of the right-hand side boundary. 2. On 31 August 2022, following discussions between the owner and the representative of the builder, Alliksan (known as Ali) Alca (Mr Alca), the builder carried out modifications to the works in varying the configuration of the gate so that the bottom rails were closer to the surface of the ground. 3. Thereafter, there was a dispute between the owner and the builder as to the quality of the works. 4. On or about 24 August 2023, Bayside Automatic Gates (Bayside) carried out rectification works which involved the re-installation of the side fence to follow the contour of the surface of the ground and the replacement of the front gate at a cost of $5,098.50 inclusive of GST. The history of the proceedings between the parties in the Tribunal 1. On 31 August 2022, the owner, as the applicant, commenced proceedings HB 23/35055 (which were subsequently renumbered 2023/00382537) against Easy Automatic Gate and Mr Alca, as the respondents, by filing an application relevantly claiming a money order for $2,500.00 being the amount which she alleged the builder had agreed to refund. 2. On 6 September 2023, the Tribunal made orders amending the name of the builder, removing Mr Alca as a respondent, and providing for the lodgment and service of the documents on which the parties intended to rely at the hearing including the builder was to provide any documents by 18 October 2023 (the 6 September 2023 orders). 3. On 20 October 2023, the builder lodged its documents. 4. On 29 November 2023, the first hearing took place. 5. On 29 January 2024, the Tribunal made orders amending the owner's claim to a claim for $4,950.00, and providing for the service of the documents on which the parties intended to rely at the hearing including the builder was to provide any additional documents on or before 22 February 2024 (the 29 January 2024 orders), and published reasons for its decision. 6. On 18 March 2024, the builder lodged its additional documents. 7. On 20 March 2024, the second hearing took place. 8. On 21 March 2024, the Tribunal made an order dismissing the application (the dismissal order), and published reasons for its decision (the reasons): The reasons 1. In the reasons, the Tribunal set out its reasons for the dismissal order under a series of headings: 1. under the heading "Application", it recorded that the application was a claim by a consumer for compensation for defective workmanship in the installation of a fence and automatic gate at residential premises in Sydney; 2. under the heading "Parties", it provided details of the parties and their representation at the hearing; 3. under the heading "Procedural History", it set out details of the history of the proceedings including the hearing at which the owner claimed costs for an expert report; 4. under the heading "Evidence", it set out details of the nature of the evidence relied by the parties including "several narrative statements" of the owner; 5. under the heading "Background Facts", it recorded the facts of the entry into the building contract, the carrying out of the works by the builder, the dispute between the parties and the carrying out of the rectification works by Bayside including: "… … On completion the applicant paid without demur and according to the respondent's evidence which I accept, expressed satisfaction with the job. …" 1. under the heading "Analysis", it stated that the two aspects of the claim were the side fence and the automatic sliding gate and observed: "For the applicant to succeed she is going to have to show some kind of defect. This could be a failure of the works to comply with the quote, agreed scope of works or similar. Or it could be that the works as executed do not measure up to the Building Code of Australia, relevant Australian Standards or possibly even some stablished usages in the trade." 1. under the heading "The side fence", it relevantly found: "… There are two ways to deal with the slope: by stepping the fence and by building an inclined fence following the contour. One sees both types of fences all over Sydney. … The quote is silent on the method to be used. There is no evidence of any standard on the question … But I cannot find that it is defective in any sense that would provide the applicant with a remedy. She now prefers the contour style. It was open to her to specify it to Mr Alca but she did not. She could have sought more detail from him before work started but did not." 1. under the heading "The Gate", it relevantly found: "… The gate at all times functioned as a gate. The motor drive mechanism worked and it separated the Illhan property from the street. The materials were as ordered with vertical round bars. According to Mr Alca various methods of affixing the gate and the track upon which it moved were discussed. … The quote is silent on the installation of the track and initially it was laid by Easy Automatic gates on top of the cobblestones. In discussion with the applicant it was noted that the track could be set into the cobblestones if they were cut with a saw or angle grinder but that would have to be done by a specialised contractor. I also note that the expert report commissioned by Ms Illhan mentions that the track itself is a "trip hazard". As since installed the track is partly set into the cobblestones but not entirely. So the "trip hazard" has not been eliminated. I further observe that it has not been effectively put to me that a gate track affixed to a driveway is in breach of any building regulation or not fit for purpose rendering it fatal to acceptance as a sliding gate." 1. under the heading "Conclusion", it found that it was not satisfied on the evidence that the works done were in any sense defective, and as a result made the dismissal order. The Notice of Appeal and history of the appeal 1. On 15 April 2024, the owner filed a Notice of Appeal (to which some documents were attached) in which she relevantly: 1. in section 5A challenges the dismissal order; 2. in section 5B sets out the following grounds of appeal: "1. My application to the NCAT was about incorrect manufacture and poor installation of the gate and fence I ordered and the decision made did not give weight to the evidence I provided that the gate and fence were not manufactured or installed as ordered. 2. The Tribunal did not examine the veracity, facts or truth of the evidence provided by the respondent. 3. I provided extensive evidence in my Affidavit dated 15 September 2023, of the defective workmanship, which was not considered in the decision. 4. The Tribunal gave significant weight to its decision on evidence provided by the respondent which was not submitted within the rules of servicing submissions, including most recently, statements submitted 2 days prior to the Hearing held on 20 March 2024, served by email. 5. As requested by the Tribunal, I provided an expert witness report, prepared in accordance with NCAT procedural Direction 3: Expert Witness Code of Conduct dated 28 February 2018, with the duty of the provider of the expert report being to the Tribunal, not to myself, and with the reliance on the relevant experience of the expert witness as a qualified builder and this evidence was not given sufficient weight in the decision made. 6. The respondent's contract was non-compliant with the Home Building Act (NSW). 7. The Tribunal gave significant weight to the supply and installation of the gate track which was to be installed property as part of the hardware as agreed in the contract. The rough cobblestones of the driveway were in place at the time of initial quote. 8. The Tribunal gave no weight to the contract requiring the gate to match existing fence (also manufactured and installed by the respondent). The gate did not match the line of the existing fence. 9. The tribunal gave no weight to the evidence provided Of the incorrect installation of the side fence which was specifically manufactured to be installed in one continuous line and not unevenly stepped down the slope of the property. 10. The Tribunal did not give consideration or weight to the fact that the respondent abandoned the job and the gate was left inoperable from August 2022, tied to the front fence with rubber ties for approximately 1 year without any progress on repair being made." 1. in section 5C seeks an the following orders: "1. Cost of work done to repair the gate and fence (Annexure Z of my Affidavit 15 September 2023) $4949.50 2. Cost of Expert Witness Report 1,320.00 3. Cost of Notice of Appeal Application Fee 486.00 4. Any further costs incurred for expert witness evidence and legal advice and representation if taken" 1. in section 6A ticks the box "Yes" in answer to the question "Are you asking for leave (to appeal)?"; 2. in section 6B ticks the box "Yes" in answer to the question "Are you asking for leave (to appeal)?"; 3. in section 6Bi attaches 4 pages sets out why the decision of the Tribunal was not fair and equitable relevantly including: "… I believe the decision was unfair and not equitable as the evidence provided In my Affidavit dated 15 September 2023 and Expert Witness Report dated 6 February 2024 by MKO Consulting Pty Ltd … was not fully considered in the decision making process, while statements emailed to me 2 days before the Hearing on 20 March 2024, were significantly relied upon by the Tribunal without any obvious scrutiny that I was aware of. … However, the reasons given for the decision did not rely on the evidence and went against the weight of the evidence of the Expert Witness Report. There was limited anecdotal evidence only regarding the proper manufacture and installation provided by the respondent and only in the form of witness statements which provide conflicting statements … In the "Evidence section of the Order provided by the Tribunal issued 21 March 2024, the Tribunal referred to the evidence contained in my Affidavit as several narrative statements and I believe my sworn Affidavit and the total evidence of the defective and non-workmanlike supply and installation of the products contained in the Affidavit, may not have been considered. In the "Background Facts section of the Order, the Tribunal readily accepted the various respondents statements claiming I was happy with the products and installation and paid "without demur", whereas I gave evidence of why I paid, which was because of the promise given by Mr Alca and the longstanding business relationship we had. The Tribunal gave considerable weight to these statements, which were not even submitted within the rules of service of documents and submissions to the Tribunal." 1. in section 6Biii attaches 9 pages set out why the decision of the Tribunal was against the weight of evidence including: "… I believe the Tribunal should have given more weight to the evidence of the work not complying with my quote and various breaches of the Home Building Act NSW 1989 and defective and non-workmanlike supply and installation of the gate and fence as described in my Affidavit and the Expert Witness Report. …" 1. in section 6Biv sets out what she contends is significant new evidence that is now available that was not reasonably available at the time of the hearing and provides an explanation for its non-availability; 2. in section 7 ticks the box "No" in answer to the question "Do you require an extension of time?" 1. Following directions of the Appeal Panel, each party filed documents and submissions in support of their respective positions. This included new evidence, not provided in the proceedings at first instance. As necessary, we will refer to this material below. 2. On 1 July 2024, we heard the appeal. The owner represented herself. The builder was represented by Mr N Ajaje, a solicitor. 3. At the commencement the owner provided enlarged copies of the Call/SMS activity report from TPG/Vodafone-Kogan (the activity report) of which three pages were attached to the notice of appeal and which we marked for identification MFI 1. 4. Each party made oral submissions 5. In his oral submissions, the solicitor of the builder indicated that the builder did not seek to rely on the 24 June 2024 Alca statement. 6. At the conclusion of the hearing, we made procedural directions for the provision of the transcript of the hearing on 20 March 2024 with the owner to provide her version by 8 July 2024 and the builder to provide its response including any amended transcript by 12 July 2024, and reserved our decision. 7. A transcipt was provided by each party, with no significant differences between the versions. The scope and nature of internal appeals 1. There is a right of appeal on a question of law, otherwise leave to appeal is required: s 80(1) and (2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are where it is satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable, or the decision of the Tribunal under appeal was against the weight of evidence, or significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with): cl 12(1)(a), (b) and (c) of Sch 4 of the NCAT Act. 3. In Cominos v Di Rico [2016] NSWCATAP 5 (Cominos) at [13], the Appeal Panel stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the appeal in s 36(1) of the NCAT Act, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. 4. In Collins v Urban [2014] NSWCATAP 17 sets out the principles applicable when considering whether leave should be granted. 5. The test of whether evidence is reasonably available for the purpose of cl 12(1)(c) of Sch 4 of the NCAT Act is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 at [23]. 6. An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances specified in s 80(2)(b) of the NCAT Act: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. The preliminary matters 1. We are satisfied that the notice of appeal was lodged within the time of 28 days prescribed under r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW). 2. In the owner's appeal submissions, the owner has raised the following "points of law": 1. the builder did not have a builders licence when the building contract was formed or at any time during the works undertaken; 2. Mr Sevkat Alca's Builders Licence number was not on the building contract; 3. the builder was not registered as a trained installer of FAAC gate motors at the time of the building contract; 4. the builder failed to comply with the following procedural orders which was to her disadvantage: 1. the 6 September 2023 orders: the builder's documents were received by post on 25 October 2023 and the builder's further submission was received by email on 24 November 2023 at 4.48pm; 2. the 29 January 2024 orders: the builder's documents were received on 18 March 2024; 3. the 29 April 2024 notice and the 15 May 2024 orders: the builder's reply to appeal was filed on 27 May 2024. 1. We infer that the builder lodged the following evidence on the following dates: 1. on 20 October 2023: the 18 October 2023 Alca statement; 2. on 28 November 2023: the 24 November 2023 Alca statement; 3. on 18 March 2024: the 15 March 2024 Alca statement, the 15 March 2024 Tieu statement and the 15 March 2024 Erciyas statement. 1. In the O'Donnell report, Mr O'Donnell expressed the opinions that the builder did not comply with the HB Act because it did not hold a contractor's licence and the building contract did not comply with s 7AAA of the HB Act because it did not include the names of the parties and the contractor's licence number. 2. The following preliminary matters arise for determination in this appeal: 1. the failure of the builder to file its reply to appeal within the time specified in the 29 April 2024 notice and the 15 May 2024 orders; 2. whether the owner can raise new arguments on appeal; 3. whether the notice of appeal raises questions of law. The failure of the builder to file its reply to appeal within the time specified in the 29 April 2024 notice and the 15 May 2024 orders 1. The builder did not comply with the directions of the Appeal Panel by filing its reply to appeal within the time specified in the 29 April 2024 notice and the 15 May 2024 orders. The delay was short as the builder filed its reply to appeal on 27 May 2024. 2. We do not accept the owner's submissions that this delay constituted unfairness to her, and she thereby suffered disadvantage. She had the reply to appeal five weeks before the appeal hearing at which she fully participated and presented her submissions. 3. As the owner did not make any application to the Appeal Panel, we are taking no action arising out of this failure of the builder. Whether the owner can raise new arguments on appeal 1. We are satisfied from reviewing the transcript that the following issues were not raised by the owner as issues for determination at the hearing: 1. the builder abandoned the job; 2. the builder was not registered as a trained installer of FAAC gate motors at the time of the building contract. 1. It is an established principle that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so: Coulton v Holcombe (1986) 162 CLR 1 at 8; [1986] HCA 33 (Coulton) (Gibbs CJ, Wilson, Brennan and Dawson JJ). This principle has been applied by the Appeal Panel on many occasions: see, for example, Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99 at [21]. 2. Having regard to the principle in Coulton at 8, we are satisfied that the owner should not be allowed to raise these issues in this appeal. It follows that we have given no consideration to these issues. Whether the notice of appeal raises questions of law Introduction 1. Having regard to the principles in Cominos at [13], we have given consideration to the reasons, the notice of appeal and the owner's appeal documents as to whether it is possible to discern grounds that raise a question of law. 2. We have also had regard to the following legal principles: 1. the question of whether the Tribunal has failed to afford procedural fairness to a party by conducting the hearing in accordance with the proper procedure raises a question of law: Italiano v Carbone & Ors [2005] NSWCA 177 at [85]-[87] (Basten JA); Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 (Resource Pacific) at [9] (Basten JA with Beazley P at [1] agreeing); Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 (Fisher) at [39] (Kirk JA with Meagher JA at [1] and Simpson AJA at [149] agreeing). This principle has been applied by the Appeal Panel: see, for example, Inventbuild Pty Ltd v Tulemis [2024] NSWCATAP 49 at [18]; 2. where a ground asserting an infringement of the rules of natural justice is raised, it is appropriate for the court to consider it first and in advance of other grounds because if established the ground may necessitate a remittal for rehearing in any event: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [116]-[117] (Gummow ACJ). This principle has been applied by the Appeal Panel: see, for example, Baas v JB Hi Fi Group Pty Ltd [2021] NSWCATAP 10 at [32]. 3. the term 'constructive failure to exercise jurisdiction' is used to describe a situation where the court has purported to resolve the parties' dispute but has not in fact done so. Thus, particularly with a court or tribunal required to provide reasons for its decision, it may become apparent from those reasons that a material issue has simply not been addressed or that material evidence has been overlooked: Resource Pacific at [9] (Basten JA with Beazley P at [1] agreeing). If there has been a constructive failure to exercise jurisdiction there will have been error of law which can be addressed on an appeal limited to a question of law: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [22] (Basten JA); see also Fisher at [39] (Kirk JA with Meagher JA at [1] and Simpson AJA at [149] agreeing). This principle has been applied by the Appeal Panel: see, for example, Steelbond Australia Pty Ltd v Wein [2024] NSWCATAP 20 at [59]-[60]. Conclusion 1. We are satisfied that the owner has raised questions of law and accordingly she has an appeal as of right under s 80(2)(b) of the NCAT Act in respect of the following questions: 1. whether the Tribunal failed to afford procedural fairness to the owner by reason of permitting the builder to rely on the evidence which it lodged on 20 October 2023, 28 November 2023 and 18 March 2024; 2. whether the Tribunal constructively failed to exercise its jurisdiction by not addressing the question of whether the builder by being unlicensed and the building contract failed to comply with the HB Act; 3. whether the Tribunal constructively failed to exercise its jurisdiction by not addressing the question of whether the builder breached the building contract by reason of the top rail of the gate not being aligned with the top rail of the front fence. 1. Otherwise, the issues raised require leave or relate to the question of costs. The issues for determination in the appeal 1. We will deal with issues for determination in the appeal under five headings: 1. issue 1: whether the Tribunal failed to afford procedural fairness to the owner by reason of permitting the builder to rely on the evidence which it lodged on 20 October 2023, 28 November 2023 and 18 March 2024; 2. issue 2: whether the Tribunal constructively failed to exercise its jurisdiction by not addressing the questions of whether the builder by being unlicensed and whether the building contract complied with the HB Act; 3. issue 3: whether the Tribunal constructively failed to exercise its jurisdiction by not addressing the question of whether the builder breached the building contract by reason of the top rail of the gate not being aligned with the top rail of the front fence; 4. issue 4: whether the owner should be granted leave to appeal against the dismissal order; 5. issue 5: the costs of the appeal. 1. Before turning to these issues, we have set out the evidence of the parties which is relevant to one or more of them. The evidence of the parties 1. The documentary evidence before the Tribunal comprised the following documents: 1. for the owner: the 15 September 2023 Ilhan affidavit and the O'Donnell report; 2. for the builder: the 18 October 2023 Alca statement, the 24 November 2023 Alca statement, the 15 March 2024 Alca statement, the 15 March 2024 Tieu statement and the 15 March 2024 Erciyas statement. 1. In the 15 September 2023 Ilhan affidavit, the owner relevantly gave the following evidence: "3. On Friday 29 July 2022 the gate and fence were installed. I advised supplier I was not happy with the gate as it was not graded to fit to the slope of the driveway. The supplier told me that I had wanted it that way, which meant there was a large gap at the bottom of the gate and the top rail was not in line with the existing front fence. In addition, the track the gate ran along was sitting on top of uneven cobblestone causing a very dangerous trip hazard. I attach photos as Annexures C.1, C.2 and C.3 to show the installed gate and track. 4. The fence had been measured and quoted to be installed in a continuous piece (one section between the pillars of existing gazebo). Instead, it had been stepped down the slope in sections, the steps were all uneven and the fixing to the pillars was irregular and caused major damage to the brickwork on most of the pillars. I attach photos as Annexures D.1 and D.2." 1. In the O'Donnell report, Mr O'Donnell, who was provided with photographs of the works carried out by the building identified with the letters "OP" expressed the following opinions: 1. as to the side fence: "OP P01. This photo depicts the first two sections of the East side fence supplied and installed by the Contractor and are typical of the remainder of the fence. The vertical members in the fence panels are not vertical and the bottom and top rails are not in a single line being almost parallel to the ground. In my opinion the Contractor has not complied with the HBA because the work has not been completed in a workmanlike manner. In my opinion the top and bottom rails, if they are going to be stepped should be level or if they are running parallel with the ground, they should be in one line." "OP P03. The photo shows the fence panel beyond the brick column not fixed to the column. In my opinion the Contractor has not complied with the HBA because they work has not been completed in a workmanlike manner as the fence panel should be fitted to the brick column." 1. as to the side gate: "OP P05 This photo depicts how the gate was finished by the Contractor. The gate has not been pre-fabricated to suit the location. The top rail of the gate is not in line with the top rail of the existing front fence and the end of the gate is not vertical or plumb and in line with the letter box pillar. In my opinion the work and the materials used in doing the work are not reasonably fit for the specified purpose or result and the work has not been completed in a workmanlike manner as required by the HBA." "OP P06 This photo depicts the Contractors attempt to line up the top rail of the gate with the existing front fence through fixing a solid triangular piece of metal to the bottom rail of the gate. In my opinion the materials used in doing the work are not reasonably fit for the specified purpose or result and the Contractor has not complied with the HBA because their work has not been completed in a workmanlike manner." "OP P09 I am instructed the Contractor fitted the sliding gate track directly to the surface of the Owners rough cobblestone driveway. In my opinion the track as fitted is defective as it presents as a safety and trip hazard and the Contractor has not complied with the HBA because the work has not been completed in a workmanlike manner." 1. In the 18 October 2023 Alca statement, Mr Alca relevantly gave the following evidence: "6. On or about June 2022, I attended the Site and completed measurements. The Applicant was present at the Site during such preliminary works. We used a laser pointer gun to assist with measurements. 7. The Applicant confirmed and was satisfied with the proposed gates and fencing systems." 1. In the 24 November 2023 Alca statement, Mr Alca relevantly gave the following evidence: "4. The Works were completed as per the Quote on or about 29 July 2022. 5. The Applicant indicated dissatisfaction in relation to the gap between the gate and the ground floor. 6. The Applicant changed her mind to extend the gate to the fence height. On the earlier site visit when measurements were made and discussed with the Applicant such concerns were not made. During such measurement discussions, a laser measurement instrument was used to note the markings." 1. In the 15 March 2024 Tieu statement, Mr Tieu relevantly gave the following evidence: "4. On or about June 2022, Erkan and I attended the Site and completed measurements regarding a gate and fence with the assistance of a laser pointer measurement gun (Laser pointer). 5. Whilst pointing the Laser pointer, the Applicant, Ms ILHAN was also present. 6. The laser point was shown to the applicant on both walls; showing the slope of the gate between the brick pillars, and the clearance bet een the gate and the cobalt stone ground (Measurements). 7. During the Measurements taking place, a conversation between the Applicant and I took place, words to the effects of: I: "Because of the slope of the land, the fence will be installed like steps, going down the hill" Ms Ilhan: "Yes, that is fine" 8. The Applicant agreed to the measurements proposed. 1. In the 15 March 2024 Erciyas statement, Mr Erciyas relevantly gave the following evidence: "4. On or about June 2022, Will and I attended the Site and completed measurements with the assistance of a laser pointer measurement gun (Laser pointer). 5. Will and I took measurements together at the Site regarding the fencing and the gate. 6. Whilst pointing the Laser pointer, the Applicant, Ms Ilhan was present. 7. The laser dot point was indicated to the Applicant on both walls, showing the height of the gate, where it will reach across and the gap and clearance between the bottom half and the cobblestone ground (Measurements). 8. Upon discussing the Measurements with the Applicant, Ms ILHAN agreed to the installation, and stated words to the effect: "this is fine, / want it like this." 9. Will and I also drew a sketch of the measurements and showed the Applicant in which she accepted. This made it easier to understand as it was a visual of the proposed Gate. 10. In accordance with the Measurements, in late July 2022, our team attended the Site for the installation of the gate and fence. 11. In relation to the fence between the Site and the neighbouring property, east side, the neighbour also came by and observed the location and the approximate 8 metre long fence line. 12. It was indicated to the Applicant with sloping land, it is common to install the fence posts in a step and step manner. The Applicant indicated that she was satisfied with the design of the fence line, as proposed above. 13. Accordingly, the fence was installed in the appropriate place that Jerene surveyed." 1. At the hearing on 20 March 2024, the owner explained her evidence, and answered questions asked and addressed comments made by the Tribunal. Mr Alca then explained the evidence of the builder, and answered questions asked and addressed comments made by the Tribunal. Issue 1: whether the Tribunal failed to afford procedural fairness to the owner by reason of permitting the builder to rely on the evidence which it lodged on 20 October 2023, 28 November 2023 and 18 March 2024 1. The builder did not comply with: 1. the 6 September 2023 orders by reason of its: 1. lodgment and service of the 18 October 2023 Alca statement on 20 October 2023 and 25 October 2023 respectively; 2. lodgment and service of the 24 November 2023 Alca statement on 28 November and 24 November 2023 respectively; 1. the 29 January 2024 orders by reason of its lodgment and service of the 15 March 2024 Alca statement, the 15 March 2024 Tieu statement and the 15 March 2024 Erciyas statement on 18 March 2024. 1. We do not accept the owner's submissions that this delay constituted unfairness to her, and she thereby suffered disadvantage. She had the 18 October 2023 Alca statement five months before the hearing. She had the 24 November 2023 Alca statement four months before the hearing. She had the 15 March 2024 Alca statement, the 15 March 2024 Tieu statement and the 15 March 2024 Erciyas statement two days before the hearing. Finally, she had an opportunity to respond to this material at the hearing on 20 March 2024. 2. In order to establish an entitlement to have the orders that aside on this ground, there must be a practical injustice and an error that is material: see, for example, Sinha v NSW Land and Housing Corporation [2024] NSWCATAP 130 (Sinha) at [64]-[67], and the cases referred to therein. 3. This necessity of the materiality of a denial of procedural fairness referred to in Sinha at [67] applies equally to other errors of law: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [40]-[41] (Beech-Jones J). 4. We are not satisfied that the owner has established that she suffered any practical injustice or that the Tribunal failed to afford procedural fairness to her by reason of permitting the builder to rely on the evidence which it lodged on 20 October 2023, 28 November 2023 and 18 March 2024. Even if the owner had established that the Tribunal made an error of law in permitting the builder to rely on the evidence which it lodged on 20 October 2023, 28 November 2023 and 18 March 2024, then we would not have been satisfied that she had demonstrated that there exists a realistic possibility that the outcome of the proceedings could have been different had this error not been made. 5. For these reasons, we reject the owner's ground of appeal that the Tribunal made an error of law by permitting the builder to rely on the evidence which it lodged on 20 October 2023, 28 November 2023 and 18 March 2024. Issue 2: whether the Tribunal constructively failed to exercise its jurisdiction by not addressing the questions of whether the builder by being unlicensed and whether the building contract complied with the HB Act 1. Neither the owner nor the builder made any oral submissions on this issue. 2. We accept that the owner through the opinions of Mr O'Donnell expressed in the O'Donnell report raised the questions of whether the builder and the building contract failed to comply with the HB Act and that the Tribunal did not address these issues. 3. The HB Act relevantly includes the following provisions: 1. a person must not contract to do any residential building work except as or on behalf of an individual, partnership or corporation that is the holder of a contractor licence authorising its holder to contract to do that work: s 4(1)(a); 2. where the contract price is between $5,000 and $20,000, the contract must be in writing and be dated and signed by or on behalf of each of the parties to it, and must contain specified details including the names of the parties, including the name of the holder of the contractor licence shown on the contractor licence, and the number of the contractor licence: s 7AAA(2), (3)(a) and (b); 3. a person who contracts to do any residential building work and who so contracts in contravention of s 4 or in contravention of any other provision of the HB Act is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, and the contract is unenforceable by the person who contracted to do the work. However, the person is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person: s 10(1)(a) and (c); 4. warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract to do residential building work: s 18B(1). 1. We are satisfied that the builder failed to comply with ss 4 of the HB Act by reason of being an unlicensed contractor. We are also satisfied that the builder failed to comply with s 7AAA(2), (3)(a) and (b) of the HB Act in relation to the absence of the names of the parties, including the name of the holder of the contractor licence shown on the contractor licence, and the number of the contractor licence on the building contract. 2. However, these matters were not relevant to the real issues in dispute, namely whether the works had been properly carried out in accordance with the building contract and relevant statutory warranties and whether the owner was entitled to a remedy because the works did not meet these requirements. 3. For these reasons, we reject the owner's ground of appeal that the Tribunal made an error of law by constructively failing to exercise its jurisdiction by not addressing the questions of whether the builder by being unlicensed and the building contract failed to comply with the HB Act. Issue 3: whether the Tribunal constructively failed to exercise its jurisdiction by not addressing the question of whether the builder breached the building contract by reason of the top rail of the gate not being aligned with the top rail of the front fence 1. Neither the owner nor the builder made any oral submissions on this issue. 2. We accept that the owner through her own evidence and the opinions of Mr O'Donnell expressed in the O'Donnell report raised the question of whether the builder breached the building contract by reason of the top rail of the gate not being aligned with the top rail of the front fence and the Tribunal constructively failed to exercise its jurisdiction by not addressing this question. 3. The Tribunal found the "materials were as ordered". It did not expressly deal with whether it was a term of the contract that the top of the gate be installed at the same level and parallel to the adjacent front fence. 4. We are not satisfied any failure to deal with this issue was material to the decision made as the owner has failed to demonstrate that that there exists a realistic possibility that the outcome of the proceedings could have been different had this error not been made for the following reasons: 1. the words "matching similar" in the building contract immediately follow the words "in tubular design with knuckle" and so on their proper interpretation indicate the gate was to have a similar design and shape as the front fence, and do not convey the meaning that the top rail of the gate was to align with the top rail of the front fence. As noted above, the Tribunal found it did; 2. the unchallenged evidence of Mr Erciyas in the 15 March 2024 Erciyas statement is that the owner agreed with the measurements for the gate including its height. 1. For these reasons, we reject the owner's ground of appeal that the Tribunal made an error of law by constructively failing to exercise its jurisdiction by not addressing the question of whether the builder breached the building contract by reason of the top rail of the gate not being aligned with the top rail of the front fence. Issue 4: whether the owner should be granted leave to appeal against the dismissal order Introduction 1. Having regard to the principles in Cominos at [13], we have given consideration to the reasons, the notice of appeal and the owner's appeal documents as to whether it is possible to discern grounds that raise a basis for leave to appeal. 2. The substantive complaint of the owner is that the Tribunal failed to properly evaluate her evidence in making its central findings that: 1. there was no defect in the side fence by reason of its stepped installation; 2. there was no defect in the gate by reason the gate track being affixed to the cobblestone driveway. 1. We have discerned that the first basis for leave to appeal raised by the owner is that this failure to properly evaluate the evidence resulted in the dismissal order being not fair and equitable and these central findings being against the weight of evidence. 2. We have discerned that the second basis for leave to appeal raised by the owner is that there is significant new evidence. 3. In considering whether the owner has established a basis for leave to appeal we have had regard to the following legal principles: 1. photographs can be deceptive, particularly in relation to perspective and distance. Great care must be taken in interpreting photographic evidence. This is particularly the case where there is no evidence as to the precise position of the camera when the photographs were taken: Goode v Angland (2017) 96 NSWLR 503 [2017] NSWCA 311 at [93]-[96] (Beazley P with Meagher JA at [179] and Leeming JA at [212] agreeing). These principles are applied in the Tribunal: X-Build Construction Services Pty Ltd v O'Rourke [2020] NSWCATAP 181 at [64]. 2. a court is not obliged to take the opinion of an expert as conclusive even though no other expert is called to contradict it: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [87] (Heydon JA). We are satisfied that this principle applies equally to proceedings in the Tribunal. Whether the decision of the Tribunal was not fair and equitable was not fair and equitable Whether the findings of the Tribunal were against the weight of evidence 1. Contrary to the evidence of the owner, the building contract does not specify that the side fence was to be installed in a continuous piece. The evidence of Mr Tieu and Mr Erciyas is that the owner approved the side fence to be stepped. Mr O'Donnell in his commentary on photograph OP P01 accepts that the side fence could be stepped or in one line. His criticism of the side fence as depicted in photograph OP P01 is that the vertical members in the fence panels are not vertical, apparently that the top and bottom rails are not level and the end of the fence is not fixed to the pergola column. 2. We have inspected photograph OP P01 and are not satisfied that it depicts that the vertical members in the fence panels are not vertical and that the top and bottom rails are not level. We have inspected photograph OP P03 and are satisfied that it depicts that the end of the fence is not fixed to the pergola column. 3. As to the finding of the Tribunal that there was no defect in the side fence by reason of its stepped installation, we are not satisfied that the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach for the following reasons: 1. the building contract did not specify the method of installation; 2. there is no evidence other than the equivocal photograph OP P01 that it was installed with the vertical members in the fence panels not being vertical and that the top and bottom rails not being level. 1. The only evidence as to the alleged defect of the gate track being affixed to the cobblestone driveway was the evidence of the owner and Mr O'Donnell. We have inspected photograph OP P09 and are satisfied that it depicts that the gate track has been affixed to the surface of the cobblestone driveway. 2. As to the finding of the Tribunal that there was no defect in the gate by reason the track being affixed to the cobblestone driveway, we are not satisfied that the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal at first instance that it can be said that the conclusion was not one that a reasonable Tribunal member could reach for the following reasons: 1. the building contract did not specify the method of installation of the gate track; 2. there was no evidence of any applicable building standard or industry practice as to the method of installation of the gate track. 1. Even if this finding is against the weight of evidence and the Tribunal should have found that the installation of the gate track was defective by reason of being a trip hazard, then the Tribunal made the further finding that the rectification works by Bayside had not eliminated the trip hazard. It follows that the owner could not have established that she had suffered any loss by reason of defective installation of the gate track. 2. It follows that we are not satisfied that the owner may have suffered a substantial miscarriage of justice because the decision of the Tribunal was not fair and equitable within cl 12(1)(a) of Sch 4 of the NCAT Act and against the weight of evidence within cl 12(1)(b) of Sch 4 of the NCAT Act. Therefore, we refuse leave to appeal on these grounds. Whether there is significant new evidence 1. The owner is seeking to rely on the following documents as constituting significant new evidence: 1. her email to the builder sent on 23 February 2024 (the 23 February 2024 Ilhan email); 2. a line tracing of the gate installed by the builder; 3. photographs of the existing front fence in relation to slope of land for the gate and the side fence; 4. photographs of significant gate hardware and its installation to the existing retaining wall; 5. a photograph of the inoperable gate; 6. photographs of the existing side fence site showing the slope in relation to the pergola pillar levels; 7. a line tracing of the side fence installed by the builder; 8. photographs of the gate and fence work by the builder including digital time/date details; 9. the activity report. 1. The owner submitted that she should be permitted to rely on these documents as they clarified the existing evidence. 2. The builder opposed the owner being permitted to rely on these documents. 3. We are not satisfied that these documents were not reasonably available at the time of the hearing on 20 March 2024 for the following reasons: 1. the 23 February 2024 Ilhan email was already in existence prior to the hearing; 2. as to the other documents, there is no evidence that they could not have been obtained prior to the hearing. 1. It follows that we are not satisfied that the owner may have suffered a substantial miscarriage of justice because there is significant new evidence which was not reasonably available at the time of the hearing within cl 12(1)(c) of Sch 4 of the NCAT Act. Therefore, we refuse leave to appeal on this ground. Issue 5: the costs of the appeal 1. The owner applied for the costs of the appeal. 2. Rule 38A deals with costs in internal appeals, and relevantly provides: 38A Costs in internal appeals … (2) Despite section 60 of the Act, the Appeal Panel for an internal appeal to which this rule applies must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal. 1. For the purpose of r 38A of the NCAT Rules the amount claimed or in dispute is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57]. 2. Consequently, it appears that r 38A(2) of the NCAT Rules is not applicable to this appeal because the amount in dispute in the appeal is not more than $30,000. If so, the position of each party paying their own costs specified in s 60(1) of the NCAT Act is applicable to the appeal unless there are special circumstances warranting an award of costs in favour of the owner within s 60(2) of the NCAT Act. 3. Prima facie, there should be no order as to costs. We will make this order. 4. However, as the parties may wish to consider their position having regard to our decision in this appeal, we have decided to make procedural orders in respect of the costs of the appeal. Orders 1. We make the following orders: 1. Leave to appeal is refused and the appeal is dismissed. 2. Subject to order (3), there is no order as to the costs of the appeal. 3. If any party wishes to make an application to vary order (2) above, the applicant (the costs applicant) is to file and serve a costs application, including submissions limited to three pages and any evidence in support, within 14 days from the date of this decision, whereupon order (2) will cease to have effect. 4. The respondent to the costs application is to file and serve any submissions limited to three pages and any evidence in opposition within 28 days from the date of this decision. 5. The costs applicant is to file any submissions in reply limited to two pages within 35 days from the date of this decision. ********** 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: 02 August 2024