Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lameh Mourad v Omar Aly [2015] NSWCATAP 49 Hearing dates: 17 February 2015 Date of orders: 25 March 2015 Decision date: 25 March 2015 Jurisdiction: Appeal Panel Before: The Hon. DA Cowdroy OAM QC, Principal Member Ms T Simon, Senior Member Decision: That the appellant be granted an extension of time pursuant to s 41 of the NCAT Act to bring this appeal. The appeal be allowed. The decision of the Tribunal dated 20 August 2014 be set aside. The proceedings be listed for a directions hearing for orders concerning the submission of any further evidence and for a hearing date. Catchwords: Appeal – extension of time to bring appeal – failure to attend hearing and to comply with directions – adequacy of medical certificate – challenged decision failing to disclose reasons Legislation Cited: Home Building Act 1999 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Gallo v Dawson [1990] HCA 30 Jackamara v Krakouer (1998) 195 CLR 516 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Kentucky Fried Chicken Proprietary Limited v Gantidis [1979] 140 CLR 675 Magjarraj v Asteron Life Limited [2009] NSWSC 1433 Nanschild v Pratt [2011] NSWCA 85 Tomko v Palasty (No. 2) [2007] NSWCA369 Texts Cited: None Category: Principal judgment Parties: Lameh Mourad (Appellant) Omar Aly (Respondent) Representation: Counsel: Appellant and respondent appealed in person Solicitors: File Number(s): AP 14/47467 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Date of Decision: 20 August 2014 Before: F Gray File Number(s): HB 14/10292 REASONS FOR DECISION 1. By Notice of Appeal filed on 18 September 2014, the appellant, Lameh Mourad (Mourad), appeals the decision of this Tribunal in proceedings number HB 14/10292, which was delivered on 5 August 2014. 2. The issue before the Tribunal concerned a claim by Mr Omar Aly (Aly), the owner of a residence located at Tennyson Road, Greenacre, for damages arising out of breach of statutory warranty under the Home Building Act 1999 ('the Act'). Mourad did not attend the hearing and provided no material to the hearing. Accordingly the Tribunal had before it only the evidence provided by Aly. Having considered that evidence, the Tribunal made an order that the appellant pay the respondent the amount of $9,489.10 in respect of rectification of defective home building work. Of this amount, $6,581 plus GST was referable to a cracked kitchen bench. 3. Mourad seeks to set aside the existing orders made against him and seeks orders that he be allowed to rectify the outstanding defects to the kitchen, and be relieved of the cost of repairing the eaves and other items. 4. In his notice of appeal Mourad states that he tried to contact the Tribunal unsuccessfully to advise it of his illness; that he denies any breach of warranty; and asserts that he was attempting to rectify the outstanding defects. 5. Leave to appeal is also sought. Since this is an internal appeal under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) ('NCAT Act'), such an appeal may be made as of right on a question of law, or with leave of the Appeal Panel on any other grounds pursuant to clause 12 of Schedule 4 of the NCAT Act. The Appeal Panel may grant leave if it is satisfied that Mourad may have suffered a substantial miscarriage of justice because of the decision of the Tribunal on appeal was not fair and equitable, was against the weight of the evidence, or that evidence is now available which was not reasonably available at the time of the hearing. 6. Essentially, the appeal is brought by Mourad on the basis that the decision was not fair and equitable because Mourad was not present at the hearing due to illness and the building defects do not justify the Tribunal's orders. 7. If Mourad was deprived of the opportunity to have his case put to the Tribunal, it could constitute a denial of procedural fairness which would be an error of law. He maintains that his non-attendance was only due to illness, which he says was notified to the Tribunal on the morning of the Tribunal hearing. Evidence and Submissions 1. In determining the appeal we have considered the following documents: 1. The notice of appeal together with a report dated 7 January 2015 prepared by City Wide Building Consultants Pty Limited upon which Mourad relies. 2. The reply to the appeal and the attached documents provided by Aly, referred to in the Tribunal's reasons for decision in COM 14/10292. 3. The decision of the Tribunal. Background 1. The initial proceedings were commenced by Aly on 21 February 2014. A callover took place on 28 March 2014 but Mourad did not attend. Leave was then granted to Aly to amend his claim. 2. The proceedings returned to the Tribunal for a callover on 2 May 2014. Mourad attended this callover when directions were made by consent for a joint inspection of the subject premises. 3. The next callover occurred on 6 June 2014. Mourad attended this callover when directions were made for the exchange of all documents, expert reports and any other material to be relied upon by each party. Aly was directed to provide his material by 27 July 2014, and Mourad was directed to provide material by 10 August 2014. 4. On 12 June 2014, a notice of hearing was issued fixing a hearing date for 20 August 2014. However on 13 August 2014 both parties applied for an adjournment for the purpose of trying to resolve the differences between them. The request for adjournment was refused and each party was notified that such an adjournment would not be granted in view of the extensive time taken since the proceedings were instituted. 5. The hearing took place on 20 August 2014 and as already referred to, Mourad failed to appear and no material was provided by him as required by the direction made on 6 June 2014. 6. At 9:37 am on 20 August 2014, the Tribunal registry received an email from Mourad which asserted that he was unable to attend the hearing due to illness and that a medical certificate would be forthcoming. However by the time such message was received by the Tribunal member, the hearing had already been completed. Extension of time to appeal 1. The notice of appeal was filed on 18 September 2014, namely one day out of time. Regulation 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 requires that an appeal be lodged within 28 days from the day on which Aly was notified of the decision or given reasons for the division (whichever is later). However, an extension of time may be permitted under s 41(1) of the NCAT Act. Further, Mourad must satisfy the Tribunal that there are reasonable prospects of success. 2. Principals governing the grant of an extension of time in which to appeal have been considered in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] of that decision. The Appeal Panel referred to the fact that the grant of an extension of time is discretionary. It can only be exercised in favour of an applicant upon proof that strict compliance with the rules would result in an injustice to the appellant: see Gallo v Dawson [1990] HCA 30; 93 ALR 479 at [2]; Nanschild v Pratt [2011] NSWCA 85 at [38]. 3. Further, the discretion is to be exercised whilst considering that the respondent to the appeal has already obtained a decision in its favour. Once the appeal time has expired, it is reasonable for that person to believe that they have a "vested right to retain the benefit of the decision": see Jackamara v Krakouer (1998) 195 CLR 516 at [4]; Nanschild at [39]. A court or tribunal, considering an extension of time, must consider the length of the delay, the reason for the delay, and the appellant's prospects of success. That is, does the appellant have a fairly arguable case? Any prejudice suffered through the respondent to the appeal is also a relevant consideration; see Tomko v Palasty (No. 2) [2007] NSWCA369; (2007) 71 NSWLR 61 at [55]; Nanschild at [39] to [42]. Delay 1. As to the question of delay the Tribunal notes at the outset that the delay of one day is a minor delay. Mourad stated from the Bar table that he understood that he was permitted '28 working days' to file the appeal. His understanding is incorrect. However, the insignificant delay is of little consequence in view of the findings that we propose to make hereunder. 2. Mourad claims that he did not provide the evidence as required by the directions made on 6 June 2014, because he was endeavouring to reach a resolution of the dispute with Aly. We note that there is some force in this submission, bearing in mind that both Mourad and Aly sought an adjournment on 13 August 2014. 3. As to the non-appearance of Mourad at the initial hearing, Mourad, in support of his appeal, a medical report prepared by Dr Alil El-Jaam. It is undated. It purports to certify that the doctor had examined "today" Mourad. The report states: "In my opinion, he/she will be unfit for his/her normal work due to flu 20/08/2014-21/08/2014 inclusive". 4. Such certificate is unsatisfactory and inadequate. As has been previously found by this Tribunal that medical reports must be specific, and clearly state that the person is unable to attend a hearing, and must indicate the precise nature of the illness which prevents attendance: see AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [4]-[5]; Magjarraj v Asteron Life Limited [2009] NSWSC 1433 at [6], [20], [22], [23]. However, in view of the conclusion which we come to, this deficiency is of no consequence. Merits 1. The Tribunal member had evidence concerning the cost of rectification of the defective works before her. That evidence was contained in part, in the report of My Property Inspections dated 1 April 2014. One of the items considered in the report was the cost of rectifying a cracking stone kitchen bench. According to the expert's report, an amount of $4,000 was the appropriate cost of rectification. This item was one of several items of defective work, but in monetary terms, the cost of rectification of a kitchen bench comprises the greater part of Aly's claim. 2. The Tribunal also had before it two quotations in respect of the same kitchen defect. One quotation was from a firm known as Luxor, which assessed the cost of rectifying the kitchen bench in the amount of $6,581 plus GST. Another firm known as Moxa quoted the cost for rectifying the same item, in the amount of $7,000 plus GST. 3. The Tribunal member accepted the lower quote, namely of Luxor. However, there is no explanation to explain why the Tribunal member did not accept the assessment of cost contained in Aly's expert's report (namely $4,000) as against the Luxor quote of $6,581 plus GST. 4. Mourad seeks to rely upon a report prepared on 7 January 2015 by Mario Bournelis, of City Wide Building Consultants Pty Limited. This report estimates the cost of rectifying the kitchen bench defect in the amount of $400 only. There is clearly a gross discrepancy between the experts' views as to the cost of this item of rectification. 5. The Tribunal member only had before her the evidence provided by Aly. However, the discrepancy between Aly's own expert and the quotation of Luxor accepted by the Tribunal member is substantial. In addition, there is also a discrepancy of substantial proportions between the expert upon whom Mourad relied compared to the expert report now submitted by Mourad. 6. The experts' opinions as to the cost of total rectification vary tenfold in respect of the kitchen bench repair. Further, as to the remaining items, whereas the Tribunal allowed in excess of $2,000, Mourad's expert assesses the cost of the same items at approximately $450. 7. We note the long history of these proceedings and we observe the obligation of the Tribunal to provide just and cheap resolution of disputes. Mourad did not comply with the orders for the provision of evidence, as indicated above. However, he has provided an explanation which we consider to be acceptable for his failure to do so, especially in view of the fact that Aly was himself engaged in those negotiations and participated in the application for an adjournment on 13 August 2014. Findings 1. It is essential that the Tribunal member provide reasons for selecting the quotation of Luxor instead of the expert's opinion. In Kentucky Fried Chicken Proprietary Limited v Gantidis [1979] 140 CLR 675, Stephen J at [682] said:- Where appellate administrative tribunals are required by statute to include in their decisions a statement of the reasons for arriving at them, there will be little difficulty in assigning some significance to silence; it will at the least reveal a failure to comply with the requirement of the statute and may go so far as to impugn the decision itself, particularly where some statement of reasons does appear but omitted from it are considerations relevant of the determination of the matter in issue. 1. The necessity for reasons has also been considered by this Tribunal: see Collins v Urban [2014] NSWCATAP 17 at [49] to [57]. 2. It is correct that the notice of appeal does not refer to the absence of reasons, but rather refers to the excessive allowances made by the Tribunal. On an appeal, an Appellate Bench is always concerned to ensure that a decision is logical. In the absence of reasons, an Appellate Bench cannot be satisfied as to its correctness. 3. In view of the deficiency evident in the Tribunal member's decision, we cannot be satisfied that the decision is fair and equitable. We are satisfied that Mourad may have suffered a substantial miscarriage of justice. Such miscarriage arises from the absence of reasons provided by the Tribunal member for the decision to accept the Luxor quote instead of Aly's expert's opinion. In the interests of justice, despite the history of these proceedings and of Mourad's failure to comply with the Tribunal's directions, we set aside the decision. Orders 1. The Tribunal, for the above reasons, makes the following orders: 1. That the appellant be granted an extension of time pursuant to s 41 of the NCAT Act to bring this appeal. 2. The appeal be allowed. 3. The decision of the Tribunal dated 20 August 2014 be set aside. 4. The proceedings be listed for a directions hearing for orders concerning the submission of any further evidence and for a hearing date. ********** 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 Amendments 25 March 2015 - Decision entered 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: 25 March 2015