Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mick Fabar Constructions Pty Ltd v Mitchell and Anr [2014] NSWCATAP 121 Hearing dates: On the papers Decision date: 01 December 2014 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member D Patten, Principal Member Decision: Application for leave to appeal dismissed. The appeal is dismissed. The Order made by the Tribunal on 8 May 2014 is confirmed. Catchwords: Error of Law, Substantial miscarriage of justice, against the weight of evidence Legislation Cited: Civil and Administrative Tribunal Act, 2013 Home Building Act 1989 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Mick Fabar Constructions Pty Ltd (Applicant) Helen Mitchell (Respondent) Representation: Not applicable Not applicable File Number(s): AP14/46402 (was AP 14/0224) Decision under appeal Jurisdiction: 150003 Date of Decision: 2014-05-08 00:00:00 Before: K Rickards, General Member File Number(s): HB 14/09953 reasons for decision 1This is an appeal against an order made by the Tribunal (Mr K Rickards) on 8 May 2014. The order and the reasons for it (as published on 14 May 2014) were as follows: ORDERS 1. The Respondent is to pay the Applicant the sum of $12,586.00 immediately. REASONS FOR DECISION 1. The Respondent erected a new home for the Applicant pursuant to contract entered into on or about 23 August 2010 ("the contract11). 2. The contract is subject to the provisions of the Home Building Act 1989, and in particular section 18B of that legislation which implies a statutory warranty into every home building contract. 3. Having considered the evidence provided by the parties, the Tribunal is satisfied that certain works undertaken pursuant to the contract require rectification. 4. The kitchen bench top was damaged during construction and reasonably required replacement. There is no acceptable alternative evidence of replacement provided by the Respondent other than the amount of his offer, and so the actual cost of replacement ($3,960.00) should be accepted. 5. The Tribunal is satisfied that the floor tiles which are the subject of the claim were scratched and damaged at some time during construction work which took place after they were laid. The Tribunal is also satisfied that the tiles reasonably need to be replaced in full due to the impossibility now of sourcing and selectively replacing matching tiles. The only available costing for this work are the two quotes obtained by the Applicant; the lower quote of $4180.00is allowed. 6. There has been a quantity of building rubble left at the site by the Respondent which should have been removed. The Respondent's director Mr Fabar advised at the hearing that he would remove this material, but there has been ample opportunity already for this to occur and it is accordingly appropriate to allow the amount of $1300.00 which is the lower quoted price for this work. 7. The painting work is clearly defective. The Respondent claims that the Applicant had an opportunity to have this work done but waived their contractual rights by not asking the Respondent's painter to attend to remedial work during the day that he was back at the site to attend to other work; however, the Applicant is protected by the provisions of the Home Building Act 1989 which provide a statutory warranty for works undertaken and which has not been waived by any conduct on the part of the Applicant. There is no alternative quote provided by the Respondent and so the amount sought by the Applicant of $3146.00 must be allowed, which is the amount of the quotation obtained by the Applicant. 8. The claim of the Applicant for the cost of earthworks at and around the water tanks is not made out, as the Tribunal is not satisfied that this work formed part of the scope of works covered by the contract. 9. The claim for interest is also dismissed. This claim relates to an expense incurred by the Applicant regardless of any breach of the contract, it is not a consequential loss arising from any failure on the part of the Respondent. 2Before coming to the issues raised in the appeal it is appropriate to make reference to sections of the Civil and Administrative Tribunal Act (the Act) which we regard as particularly relevant: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2): (a) the Tribunal must observe the rules of evidence in: (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. Note. Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege. (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal: (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases. 3This was a dispute between a home owner and a builder. It involved relatively simple issues of fact and relatively small amounts of money. The parties were present in person before the Tribunal (the builder by its director Mr Fabar) and were given opportunity to present their cases. It is obvious from Mr Rickards reasons that Mr Fabar made during the course of the hearing what amounted to admissions. He was perfectly entitled to take these into account as evidence in the case as he was entitled in accordance with s38(2) to inform himself of any matters as he saw fit subject to the rules of natural justice. 4The notice of appeal filed on 2 June 2014 asserted 5 alleged errors of law by Mr Rickards. We will deal with them in turn. 5The first of the alleged errors of law was that the Tribunal denied procedural fairness by refusing leave for legal representation. In cases such as this s45 of the Act confers on the Tribunal an unfettered discretion albeit due to be exercised judicially. In our opinion the appellant was right not to press this point. 6The second alleged error of law concerned the Tribunals findings in respect of the kitchen bench top. Although only brief reasons were given in our opinion they were adequate to explain why the order was made in respect of the bench top and the means by which compensation was calculated. In our opinion there was no error of law. 7Mr Rickards did not say that he was "bound" (as stated in the appellants submissions) to accept a particular figure but that in the circumstances he "should" accept it. This was a good example of the Tribunal's right to inform itself as it thinks fit. It is quite wrong to assert as the appellant did in its submissions that the Tribunal in effect reversed the once of proof and thus erred in law. There was material upon which it could conclude that the top required replacement and there was material accepted by the Tribunal for costing such replacement. 8Third it was asserted that the Tribunal's findings in respect of the floor tiles constituted an error of law. Again, although the Tribunals reasons are succinct, they are in our opinion adequate. There is an explanation for the Tribunal inferring that the scratches were the responsibility of the appellant and for the need of replacement in full. In our opinion no error of law is disclosed. 9The matter of building rubble is the subject of the fourth alleged error of law. The notice of appeal refers to s18B of the Home Building Act 1989 and asserts that Mr Rickards committed an error of law by determining that on its proper construction the residential building contract required the appellant to remove rubble. This is an odd contention given the express provision in the definition of "practical completion', "site cleaned and all excess items removed from site". In any event apart from the fact that there was an express contractual obligation to remove rubble Mr Rickards seems to have relied on an admission made on behalf of the appellant by Mr Fabar at the hearing. There was no error of law. 10Finally the appellant asserts that an error of law arises from Mr Rickards' finding in relation to paint work. Again the Tribunal's reasons are shortly expressed but there is a finding of defective paint work and reference to an implied admission by the appellant. The Tribunal correctly refers to the statutory basis for the claim in respect of defective paintwork and explains the basis for its finding as to the amount of compensation payable. Again in our opinion no error of law is exposed. 11The appellant in its submissions indicated that it no longer presses a contention that the decision was not fair and equitable. However the appellant sought leave to appeal that the decision as being against the weight of evidence. While the appellant did not complete the box indicating leave to appeal was requested, the Appeal Panel has treated the application as being made because of schedule 5 attached to the Notice of Appeal referred to in Item 12 B(ii). 12The Appeal Panel will deal with each item in Schedule 5 in turn. Tiles 13 There was evidence the tiles were scratched. This is found in various documents including the report of Mr Meagher dated 18 October 2013 (Meagher Report) item 1, the letter from the Appellant to the Department of Fair Trading dated 2 September 2013 (Appellant's September letter) the list of Defects prepared by the builder dated 7 August 2012. Clearly the tiles were damaged. The appellant did not provide any third party quotation for the rectification work. From the respondents there was a quotation to repair the tiles provided by Style Master Tiling. It stated: "Quote to take out all damaged tiles and put in new tiles. Supply all glues and grouts. Quote includes basic cleaning of all areas". 14The price was $4180.00 which the Tribunal accepted. While the appellant asserts less work was required, the appellant does not deny some tiles were damaged. 15The Tribunal was entitled to conclude from this evidence that tiles were in fact damaged and the repair work and costs was limited to taking out and replacing "all damaged tiles". 16There was also a second quote from another tiler, for a greater amount, also limited to replacing "damaged tiles". This quote was for a larger amount. While there is no count of the tiles, the conclusion of the Tribunal as to the cost of necessary repairs is not shown to be against the weight of evidence where two independent tilers have provided quotes to rectify the damaged tiles. Painting of the Pergola 17There was evidence of defective painting work: Item 2 of Meagher Report, Appellants admission in paragraph 3 of the Appellant's September letter. 18There was a quotation from Steve Ingwesin dated 31 October 2013 for $3146.00 which the Tribunal accepted. There was no independent quotation provided by the Appellant. 19Again it was open to the Tribunal to accept this evidence and the conclusion is not shown to be against the weight of evidence. Removing Building Rubbish 20There was evidence of the appellant having left building rubbish on site: See Meagher Report. The items of rubbish are identified by Mr Meagher as being "debris left on site after handover". See eg. Photo 16. 21The debris is shown in the photographs as embedded in the ground, that is excavation of the ground will be necessary to remove the debris. 22The Tribunal had two quotes for the removal of the rubbish, which detailed required work including earthworks, cartage and tip fees. One quote was for $1300.00, the second quote for a greater amount. No quote was provided by the builder from a third party. The Tribunal accepted the quote for $1300.00. 23Again it was open to the Tribunal to accept this evidence and the decision to accept the lower quote is not shown to be against the weight of evidence. Replacing timber top of kitchen 24The kitchen top was originally installed by Bathurst Furniture and Kitchens (BFK): see respondent's submission to the Tribunal. BFK was the original supplier, apparently engaged by the appellant to do this work. 25The appellant accepted the kitchen top was damaged: see appellant's submissions to the Tribunal dated 4 March 2013 (item 5(a)). The appellant told the respondents that the kitchen top should be removed by BFK for repair of the damage: see email from Appellant dated 30 July 2012. The email includes an email from the respondents' stating "the return ... is broken through": email 29 July 2012. 26BFK in fact replaced the bench top. The price was $3960.00. In the invoice BFK stated the required work was: "Replacement of raised timber benchtop due to damage caused by others while installed at new home". 27It was open to the Tribunal to accept the kitchen top needed replacement and from evidence of BFK, the supplier of the original kitchen, that the cost as found by the Tribunal was reasonable. 28No independent evidence was provided by the Appellant. 29Again the decision is not shown to be against the weight of evidence. 30Having regard to the above conclusions, the appellant has not shown it may have suffered a substantial miscarriage of justice and the application for leave to appeal should be dismissed. 31The appellant has failed on all grounds argued and accordingly the application for leave to appeal should be refused and the appeal should be dismissed. Order (4)Application for leave to appeal dismissed. (5)The appeal is dismissed. (6)The Order made by the Tribunal on 8 May 2014 is confirmed. 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. Principal 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: 24 December 2014