Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners Corporation SP 65872 v Salsano [2014] NSWCATAP 119 Hearing dates: Appeal determined on the papers Decision date: 23 December 2014 Jurisdiction: Appeal Panel Before: P Wass SC, Senior MemberR Titterton, Principal Member Decision: Leave to bring application out of time refused Appeal dismissed Catchwords: Appeal - Civil and Administrative Tribunal (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 Cases Cited: Brookfield v Owners Corporation Strata Plan 61288 [2014] HCA 36Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Category: Principal judgment Parties: The Owners Corporation SP 65872 v Salsano (Appellant)Enzo Salsano (Respondent) Representation: Vardenga Roberts (Appellant)Hahm Lawyers (Respondent) File Number(s): AP 14/46473 Publication restriction: Nil Decision under appeal Jurisdiction: 150003 Date of Decision: 2013-01-29 00:00:00 Before: C Paull File Number(s): HB 08/19722 reasons for DECISION Introduction 1In this matter the appellant seeks to appeal from the decision of 29 January 2013 of a member sitting in the Home Building Division of the then Consumer Trader and Tenancy Tribunal of NSW (the Tribunal). 2The Tribunal dismissed the application of the appellant (there the applicant) against the respondent because there had been no appearance of either party, and no satisfactory explanation for such non-attendance had been given. 3This is a matter in which the appellant requires an extension of time in which to file the appeal. For the reasons given below, we consider that the application for the extension of time should be refused, and the appeal dismissed. Grounds of Appeal - Orders sought 4The appellant's grounds of appeal can be stated simply: neither it nor its insurer AAI Ltd t/as Vero Insurance (formerly known as Suncorp Metway Insurance Ltd) (Suncorp) received a notification of a hearing to be held on 29 January 2013. It is submitted that the insurer has sustained significant prejudice and is now unable to pursue its claim against the respondent, a builder, under its rights of subrogation following the settlement of proceedings HB 07/48493 and HB 08/27202 on 14 April 2013. 5The appellant seeks orders setting aside the order of 29 January 2013 and reinstating proceedings HB/19722, together with other ancillary orders including that Suncorp "be allowed to appear and be represented by Vardenga Roberts solicitors for the purposes of pursuing the claim against the Builder". 6The respondent opposes the relief sought. It submits that: * the appellant has not satisfied any of the criteria to warrant a grant of leave to appeal, (see Collins v Urban [2014] NSWCATAP 17); * the appellant requires an extension of time in which to appeal; and * the respondent will suffer significant detriment if the appellant's appeal is granted. 7In the alternative, the respondent submits that, if the application for leave to appeal is granted, the appeal should be dismissed for the reasons set out in Brookfield v Owners Corporation Strata Plan 61288 [2014] HCA 36. Extension of time 8Unless the Tribunal grants an extension under s41 of the Civil and Administrative Tribunal Act 2014, an appeal must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later). 9The Tribunal published the decision under appeal 29 January 2013. The appeal to this Appeal Panel was filed on 23 July 2014. 10The appellant submits that Suncorp "only became aware of the Tribunal's orders dismissing the proceedings HB 08/19722 following direct enquiries being made with the Tribunal Registry in or around early February 2014". As to when the appellant was notified of the decision to be appealed or given reasons for the decision, the appellant relies on an affidavit of Mr Dan MacCallum sworn 18 November 2014. Mr McCallum was the solicitor on record for the appellant in the following proceedings: * The Owners Corporation Strata Plan 65972 v Salsano (HB 08/19722); * The Owners Corporation Strata Plan 65972 v Suncorp Metway Insurance (HB 07/48493); and * Agathocleus v Suncorp Metway Insurance (HB 08/27020), * (collectively "the Owners' Claims"). 11Mr McCallum states that the Owners' Claims were listed for directions in the Tribunal on 8 October 2012. He states that no notice of a hearing to be held on 29 January 2013 was ever received, and that he was not aware that the Owners' Claims were listed for hearing on that date. Accordingly there was no attendance by or on behalf of the appellant at the hearing. 12The remainder of the affidavit attaches correspondence between his firm and Vardenga Roberts, who act for Suncorp. A letter from Vardenga Roberts of 24 March 2014, received by Mr McCallum on 25 March 2014, notes that proceedings HB 08/19722 (now the subject of this appeal) were listed for hearing on 29 January 2013, and by reason of there being no attendance by Mr McCallum's firm on that day, the proceedings were dismissed. This letter of 24 March 2014 puts Mr McCallum and his firm on notice that the Vardenga Roberts considered a consequence of Mr McCallum's failure to attend was that Suncorp had lost rights of recovery against the respondent builder. 13This letter appears to have been predated by other correspondence or communications between the two firms of solicitors because the letter notes that Mr McCallum or his firm had asserted that it had not received a copy of the notice of the hearing. Suncorp then requested Mr McCallum to write to the Tribunal to obtain access to the Tribunal's file, noting that it was not able not able to do so itself as it was neither "on the record" nor acting as a party in the proceedings. The letter states that while Suncorp had been subrogated to the rights of the owners, that subrogation could only operate on and after the date that Mr McCallum's client signed the terms of settlement, which not take place until April 2013, by which time the proceedings had already been dismissed. 14In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel considered the principles which govern the granting of an extension of time. The Appeal Panel stated at [22]: The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]. 15We also note the observations of the Appeal Panel in Habib v State of New South Wales (NSW Police Force) [2014] NSWCATAP 70 at [130]: When an extension of time is sought for an application or appeal but the application or appeal is without merit and would be refused or dismissed, the proper course is to refuse the application for an extension of time - Roskott v Commonwealth Bank of Australia [2014] NSWCA 341 at [8]. 16In Jackson, the Appeal Panel, in considering whether or not to grant an extension of time, highlighted four matters. The first matter was the length of delay. In Jackson the delay was approximately five weeks. It should be noted that Jackson was an appeal in respect of a residential tenancy decision, where only 14 days is allowed in which to file an internal appeal; see rule 25(4)(b) of the Rules. The Appeal Panel considered that, in the circumstances of that case, the length of delay did not tell substantially in favour of either granting or not granting the extension of time sought. 17In the circumstances of this appeal there is no evidence as to when the appellant became aware of the decision appealed against and no submission has been received as to that fact. It is submitted, without evidence, that Suncorp became aware "in or around early February 2014". It could be inferred from the letter of 24 March 2014 referred to above, and from the fact that the insurer became aware in or around early February 2014, that the appellant must have become aware in early February 2014, at the latest, of the decision having been made. Assuming that the appellant became aware on 7 February 2014 that the proceedings had been dismissed on 29 January 2013, any appeal should have been filed by 7 March 2014. As such the present appeal is approximately four and a half months out of time. It is not possible, without evidence on a matter which the appellant bears the onus of proof, to assume that it was any later. 18The second matter was the explanation for the delay. Here, at all times, the appellant was represented by legal practitioners. The explanation is that the Tribunal did not inform the appellant (or the insurer, a point we will consider below) that there was to be a hearing on 29 January 2013. We note that there is a copy of a notice of the hearing directed to the appellant, addressed care of MacCallums, on the Tribunal file, but we accept that, for whatever reason, this notice was never received by the appellant or its solicitors. However, it is surprising that neither the appellant's solicitors nor the appellant itself made enquiries in respect of the matter from (possibly) October 2012 to February 2014. We accept the respondent's submission that a legal representative of reasonable competence ought to have pursued the matter and made enquiries. We find that the failure to do so is telling against granting an extension of time. 19The third matter considered in Jackson was the prejudice to the respondent. Here the respondent submits that he will suffer significant detriment if the appellant's application is granted. This detriment includes both financial and significant mental and physical stress caused by the prolonged nature of the proceedings. In reply the appellant submits that the reinstatement of the proceedings will not cause the respondent substantial injustice, or any injustice at all, on the basis that the respondent previously failed to attend any of the Tribunal's directions hearings or exercise its rights by defending the proceedings. No evidence was presented to support the submission as to financial detriment or significant mental and physical stress. In the absence of any evidence on this issue we are not persuaded that this factor has any significance in our decision whether or not to grant an extension of time. 20The fourth and final matter considered by the Appeal Panel in Jackson was the appellant's prospects of success on appeal. The principal ground relied on by the appellant is as follows. On 1 June 2012 the Tribunal held a directions hearing in the Owner's Claims. The first order of the Tribunal was in the following terms: I note that in application 08/19722 Owners Corporation 65872 application against the builder, there was no appearance by the builder and the parties advised that the builder has never appeared in these proceedings. The matter is to continue be listed with 07/48493 the Owners Corporation's application against the insurer and application 08/2720, the application by lot owners 3 in the subject plan against the insurer. 21The appellant submits that this order contemplates the involvement of Suncorp in the subject proceedings, as the parties being present on 1 June 2012 were the appellant and its insurer. The appellant submits that despite the Tribunal's apparent contemplation of the involvement of Suncorp in the present proceedings, as evidenced by the order referred to above, Suncorp was not notified of the hearing of 29 January 2013. As a consequence of neither the appellant or Suncorp receiving notification of the hearing on 29 January 2013 is submitted that Suncorp sustained significant prejudice in being able to pursue the claim against the builder in this proceeding under its rights of subrogation following the settlement of proceedings HB 07/48493 and HB 08/2720. 22In summary, the respondent submits that the appellant, having received notice of the hearing of 29 January 2013, is out of time for its appeal by almost 18 months. The appellant says it annexes as "A" to its submissions a copy of the notice of hearing, but what has been annexed is not a copy of the hearing of 29 January 2013, but a copy of the notice of the hearing of 8 October 2012. As noted above there is a notice of the hearing directed to MacCallums on the Tribunal file, but given the appellant's submissions and the evidence of Mr MacCallum we accept that the insurer was not aware of the hearing until early February 2014. 23The appellant's submission should be rejected. At no time was the insurer Suncorp ever a party to the relevant proceedings and the Tribunal was under no obligation to inform it of hearings. This was entirely a matter for the appellant, its legal representatives, and Suncorp. Suncorp was not a party, had no right to appear and no right to be heard. As Suncorp's solicitors recognised and noted in their letter of 24 March 2014 to Mr MacCallum, Suncorp was neither "on the record" nor acting as a party in the proceedings. 24We further note that in the proceedings the subject of appeal on 8 October 2012 the Tribunal noted that the appellant (there the applicant) was to "arrange assignment of proceedings and personal service on respondent". This appears to be a reference to the fact that at that directions hearing, which was a directions hearing for the Owners Claims, the Tribunal was advised by the parties that the owners claims against Suncorp had resolved and the terms of settlement in the process of being prepared (see paragraph 1.5 of the appellant's submissions). Consideration 25It appears to the Appeal Panel that the appellant has little if any prospect of success in an appeal based upon the grounds set out in the Notice of Appeal. It may be thought that the appellant should satisfy the Appeal Panel that their case has more substantial merit than merely being fairly arguable. In Tomko v Palasty (No 2) [2007] NSWCA 369, Hodgson JA, with whom Ipp JA agreed, stated at [14], in a passage referred to in Jackson: There may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable. 26The appellant's case does not meet this test. However, even if it were accepted in this appeal that the appellant only had to establish that its appeal was "fairly arguable", we do not consider that the appellant's grounds of appeal satisfy that test. Conclusion on Extension of Time and Orders 27For the above reasons, the Appeal Panel is not prepared to grant the appellant an extension of time in which to appeal. 28The Appeal Panel makes the following orders: (1)The application for an extension of time in which to appeal is refused. (2)The appeal is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 December 2014