Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Greg and Maria Rippon v Coastal Pole Homes Pty Ltd [2014] NSWCATCD 108 Hearing dates: 25 and 26 July 2013, 21 May 2014 Telephone Hearing Decision date: 24 June 2014 Before: J A Ringrose, General Member Decision: 1.Following an application to reconsider a decision handed down on 31 December 2013 pursuant to the provisions of s. 53 of the Civil and Administrative Tribunal Act 2013, the decision handed down on 31 December 2013 is affirmed without variation. Legislation Cited: Civil and Administrative Tribunal Act 2013 ss. 36, 38 and 53 Category: Principal judgment Parties: Greg and Maria Rippon (applicants) Coastal Pole Homes Pty Ltd (respondent) File Number(s): HB 11/34115 Publication restriction: Nil reasons for decision BACKGROUND 1The substantive hearing for this matter took place in Newcastle on 25 and 26 July 2013. In that hearing Ms McMahon of Counsel appeared for the applicants and Mr Bland of Counsel appeared for the respondent. 2On 26 July 2013 the decision of the Tribunal was reserved and the following directions were made and published to the parties on 30 July 2013; (1)A copy of the decision will be sent to you in due course. (2)Applicant to provide and serve submissions by 12 August 2013. (3)Respondent to provide and serve submissions by 13 September 2013. (4)Applicant to provide and serve submissions in reply by 27 September 2013. (5)Submissions by both parties are to address the issue of costs. When parties are advised that a decision has been made in any document relevant to special costs orders is to be provided to the Tribunal and to the other party. 3Counsel appearing for both parties had appeared previously in other Tribunal matters and it was assumed that both Counsel were familiar with the process associated with filing of submissions. A dispute has arisen concerning the filing of submissions and it is accordingly appropriate to note that the sound recording of the 26 July 2013 includes the following; "I won't put this in the formal orders simply because I will simply order exchange of submissions, but if counsel on both sides could, when forwarding to the Tribunal, forward a copy to me, and my email address is (email address provided), so if you, if parties are able to do that, that would facilitate .... the recording further shows that Ms McMahon discussed filing submissions by email or fax and stated that she had filed with the Registry via fax in the past." 4The initial submissions from the applicant were received by the Registry in accordance with the timetable as were the submissions provided by the respondent but there is no record of submissions in reply having been received by the Registry or by the member at any time prior to mid- October. 5Paragraph 14 of the Decision published on 31 December 13 notes; "the initial submissions from the applicant and the respondent were received but the applicants did not provide submissions in reply as required by the Directions made on 26 July. The submissions in reply had not been received by mid October 2013 and the matter was referred for final determination in late October 2013." 6By a letter dated 3 February 2014 Ms McMahon of counsel for the applicants, suggested that the submissions in reply were forwarded by email to the Members chambers "in accordance with directions". A response from the Registry noted that submissions had in reply from the applicants had not been received by the Registry by mid-October and the submissions in reply were accordingly not considered when the final determination was made. 7On 10 February 2014 the Tribunal received a letter dated 2 February 2014 from the applicants. That letter noted that they had recently received advice from the solicitor for the respondent that Coastal Pole Homes Pty Ltd was now deregistered. An application for voluntary insolvency was filed in August 2013 and the company was deregistered as and from 16 October 2013. The letter continued in part as follows; "1 -We have incurred significant additional costs including preparation of final submissions, review of the other sides reply, and preparation of our final "right of reply". This has happened after Mr Brandley applied for voluntary insolvency. We need to not be incumbent (stet) upon the company to notify us and the CTTT of such a critical event? We would not have incurred such a lot of additional costs had we known these facts back in August last year." The letter then continued' "5 - Finally we await your consideration of our "right of reply" to be considered in order that we may lodge a claim on the Home Owners Warranty insurance to get the problems caused by Coastal Pole Homes fixed, and note that we have lost well over $15,000.00 in legal costs to pursue this matter in good faith of the processes required by law". 8The matter has thereafter been referred back for consideration as to whether the powers available under section 53 of the Civil and Administrative Tribunal Act 2013 should be invoked in relation to the submissions in reply which were not provided to the Tribunal in accordance with the directions. 9The matter was listed for Telephone Directions on 21 May 2014 in order to enable the respondent to consider and if appropriate make submissions regarding the application. The applicants appeared in person by phone on 21 May and Mr Blackwell, solicitor, sought leave to appear on behalf of a Director of the company which had been de-registered. Mr Blackwell was granted leave to appear and was given an opportunity to make submissions on or before 4 June in relation to the power of the Tribunal to revisit the matter under s.53. APPLICATION OF SECTION 53 DECISION 10In written submissions dated 21 May 2014 and received on 26 May 2014 Mr Blackwell, solicitor for a director of the respondent company submitted that s. 53 of the Civil and Administrative Tribunal Act did not allow the Tribunal to consider the final submissions made by the applicants following the hearing of the matter. He conceded that the Tribunal could make amendments to any document filed in connection with the proceedings and that those amendments could be made at any stage of the proceedings, but he alleged that the application should be refused because the applicants were not seeking to amend any documents. 11It is necessary to firstly consider whether s. 53 of the Civil and Administrative Tribunal Act 2013 can be applied to enable a consideration of the submissions which were not taken into account and if thereafter the provisions of s. 53 can be applied it becomes necessary to consider whether the Tribunal could set aside or vary decisions which involved a procedural irregularity resulting from a failure to comply with the provisions of the Act or the procedural rules. 12Section 53 provides; 53 amendments and irregularities (1) the Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice. (2)any such amendment may be made; (a)at any stage of the proceedings, and (b)on such terms as the Tribunal thinks fit, but may only be made after giving of notice to the party to whom the amendment relates. (3)if a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise. (4)the Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings. 13Section 36 of the Act prescribes that the "guiding principal for the Act and procedural rules ..." is to facilitate the just, quick and cheap resolution of the real issues in the proceedings." 14Section 38 enables the Tribunal to determine its own procedure in relation to any matter for which the Act or procedural rules do not otherwise make provision whilst subsection 5 provides; (5)the Tribunal is to take such measures as are reasonably practicable; (a)to ensure that parties to the proceedings before understand the nature of the proceedings and (b)... and (c)to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. 15In the present case the applicants claim that the procedures of the Tribunal had deprived them of an opportunity to have their submissions in reply considered when the matter was determined and they seek to have the decision revisited to the extent that they were deprived of a reasonable opportunity to have their submissions properly considered in the proceedings. They submit that the Tribunal may, in dealing with an irregularity in the application of the procedural rules may, if appropriate, wholly or partly set aside the decision. 16Although I am not persuaded that the Tribunal failed to properly apply the procedural rules in the circumstances, it is arguable that having regard to ss 36 and 38 of the Act that the submissions in reply can and should be considered to determine whether they would in any way have impacted upon the decision which has been handed down. CONSIDERATION OF THE APPLICANT'S SUBMISSIONS IN REPLY 17It would appear that s 53 does not enable a review the whole of the decision by some type of appeal process but rather the Tribunal is only empowered to consider whether, if the submissions in reply had been allowed and properly considered, there would have been any amendment or alteration to the Orders made or to the reasons given for the Decision. To this end it is necessary simply to consider those parts of the submissions in reply which may have an impact on the reasons given for the decision or the decision itself. 18The Decision and the Reasons for Decision published on 31 December 2013 comprised only three parts. The first part which was described broadly as liability, addressed the question of whether the respondent builder had failed to carry out works in a proper and workmanlike manner. It is clear that in relation to the issue of liability the matter was determined in favour of the applicants and against the respondent. It is therefore unnecessary to consider further whether the submissions in reply directed to this issue would have given rise to a different result. 19In relation to the question of damages, that being the cost of rectification work, it is noted that the applicants claimed a rectification cost of $42,914.00 together with an additional sum of $1,045.00 being the cost of the removal of a pool table during rectification works. There was an initial claim of $38,953.00 based upon a quotation provided in October 2011 and against that claim the respondent had alleged (without omission of liability) that the appropriate rectification costs should be $29,083.00 inclusive of GST. The Tribunal ultimately determined that the sum payable by the respondent to the applicants was a sum of $29,083.00 that being the sum assessed on the evidence of the respondents. 20The issue of cost of rectification was dealt with in the initial submissions on behalf of the applicant in paragraphs 35-42. Reference was made to the original estimate of loss in a sum of $38,953.00 determined by B & S Webb. Counsel for the applicants then submitted that the builder, in response, denied liability but did not offer an alternative scope for rectification and merely set out an estimate of loss based on what was described as "his own attached schedule". It was claimed that he failed to provide an estimate from an independent contractor. Reference was then made to an increase in costs to $42,914.00 which was supported by an updated quotation current for 2013. 21The respondent provided submissions in relation to the cost of rectification in paragraphs 47-49 of submissions provided by Mr Bland of counsel and dated 6 September 2013. The issue of failure to mitigate was raised and it was submitted that the respondent, if liable, should only be obliged to pay the rectification costs necessary to rectify a defect in 2010 or 2011 and not an increase beyond that time. 22The applicant's submissions in reply addressed the cost of rectification in paragraphs 26-28 inclusive. Ms McMahon noted that there is never any willingness on the part of the builder to carry out repair work and even if there were, it should have been carried out free of charge pursuant to the warranties. She stated that "an alleged refusal of a non-existent offer to carry out repairs for an additional sum" should not be used as a basis to claim "non-mitigation of loss" and suggested that the builder would go to any lengths including misleading or attempting to mislead the Tribunal about the factual background of the matter in order to escape liability. The submissions then concluded; "28 - with respect to the cost of rectification, the home owner repeats its earlier submissions in chief of paragraphs 36-42" It is necessary therefore to consider whether these paragraphs relating to the cost of rectification would or should, if fully considered, have impacted on the ultimate findings and the reasons therefor. 23Paragraph 72 of the Reasons for Decision referred to the claims made by the applicants initially through Mr Webb's quote of $38,953.00 and subsequently through an amended sum of $42,914.00. Paragraph 73 recorded that the rectification cost put forward by the respondent was a sum of $29,083.00 and it was noted that although the costing represented, in part, assessments made by the representative of the respondent, the major costing related to the kitchen, the flooring and the painting were the subject of independent quotes obtained in 2011. The evidence available showed that preliminary costs were itemised, the kitchen quote was a quote from Galley Kitchens, the flooring quote was a quote from JAG Woodworkers and the painting quote was a quote from Link Pascol. Allowance was also made for the cost of removal of the pool table. 24Paragraphs 75-77 of the Reasons for Decision dealt with the series of adjournments which had been granted in the matter. The Tribunal observed that all but one of the proposed adjournments had been granted at the request of the applicants and in the face of opposition by the respondent's solicitors. It was then observed that there appeared to be merit in the submission that the cost of rectification should be ordered at a time when the matter would have been heard but for the ongoing adjournment applications, namely, as at April 2012. The competing claims of $38,953.00 and $29,083.00 were then reviewed and the Tribunal concluded, for reasons set out in paragraph 79 of the decision,, that the appropriate rectification costs was the sum of $29,083.00 proposed by Mr Brandley on behalf of the respondent with the assistance of what were described as independent quotes for the kitchen, the flooring and the painting, together with an agreed cost of $165.00 for carpentry and an itemised cost of preliminary matters. 25There is nothing in the submissions in reply which would arguably have affected that decision or the reasons for that decision. Although counsel for the applicants took issue with the willingness of the respondent to undertake rectification work, the only other matter in relation to costs of rectification was a reference to the home owner repeating the earlier submissions in chief in that regard. 26It follows that the submissions in reply would not, even if they were considered initially, have impacted upon the decision or the reasons for it. The decision and costs orders made on 31 December 2013 stand and the application for consequential relief pursuant to s 53 of the Act is refused. 27The order for costs was not further addressed in the submissions in reply and the costs order will also stand. J A Ringrose General Member Civil and Administrative Tribunal of New South Wales 24 June 2014 ********** 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: 04 September 2014