Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Magill v Dilworth [2015] NSWCATAP 92 Hearing dates: 24 March 2015 Date of orders: 20 May 2015 Decision date: 20 May 2015 Jurisdiction: Appeal Panel Before: A Coleman SC, Senior Member P H Molony, Senior Member Decision: 1. Leave to appeal refused. 2. The appeal is otherwise dismissed. 3. The stay of the orders made by the Tribunal on 17 November 2014 is lifted. Catchwords: Home Building – Appeal – no errors of law – application for leave to appeal – decision fair and equitable – decision not against weight of the evidence – leave refused – appeal dismissed. Legislation Cited: Civil and Administrative Tribunal Act 2013 Uniform Civil Procedure Rules 2005 Texts Cited: NCAT Procedural Direction 3 Expert Witnesses Category: Principal judgment Parties: Peter Gerard Magill - Appellant Sophie Dilworth - Respondent Representation: Appellant in person Respondent in person File Number(s): AP 14/58729 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Commercial and Consumer Division Date of Decision: 17 November 2014 Before: D Moss, General Member File Number(s): HB 14/34558 REASONS for decision 1. Peter Magill (the appellant) has appealed against a decision of the Consumer and Commercial Division (CCD) of this Tribunal made on 17 November 2014 in which he was ordered to pay the Ms Dilworth (the respondent) the sum of $18,767.96. This was comprised of the costs of rectification of a defective bathroom constructed by the appellant at the respondent's home of $16,976.00, and $1,800.00, being the cost of an expert report. 2. The appellant asserts errors of law said to have been made by the Tribunal in the course of its decision and also seeks leave to appeal on the ground that he may have suffered a substantial injustice because the decision of the Tribunal was against the weight of the evidence and was not fair and equitable. 3. We have decided to dismiss the appeal because the matters the appellant complains of are not errors of law, and because we do not consider that the decision was unfair and inequitable, or against the weight of the evidence. Set out below are our reasons for reaching those conclusions. Material before the Appeal Panel 1. The Panel had before it the following materials: 1. The notice of appeal and attachments 2. The reply to appeal and attachments 3. The appellant's submissions filed 18 February 2015 and attachments. 4. The respondents submissions filed 27 February 2015 and attachments. 5. The appellant's submissions in reply filed 6 March 2015 and attachments. 6. The decision of the CCD made on 17 November 2014. 1. In addition the Panel had the benefit of oral submissions made by each of the parties at hearing on 24 March 2015. Grounds of Appeal 1. The appellant relied on two errors of law which he identified thus – 1. Parties to the contract were Peter & Helen Magill T/A Hunter Joinery and Daniel Butler (attached invoice and initial rectification order). 2. The order made was for $18,767.96. This was greater than the amount sought which was $12,415.00. 1. The appellant sought leave to appeal because the decision was not fair and equitable for the following reasons - 1. Because the report of Mr Hutchinson, an expert retained by the appellant, was "disregarded" by the Tribunal because it did not have a CV attached. The appellant explained that he had removed the CV, not understanding its significance and had been refused the time to go and get it during the hearing. 2. Because the respondent was awarded more than she claimed (mirroring error of law 2). 3. Because of the significance the Tribunal gave to the Scott Schedule provided by the respondent's expert (Mr Sim's) when assessing the cost of rectification, and the fact that neither the appellant nor his expert had completed a Scott Schedule. 4. Because the respondent served him with the evidence she wished to rely in at the first hearing not by 7 October 2014 as ordered, but on 8 October 2014. The appellant explained – It was not possible that I could receive on the 7th therefore I could not respond as such I think this documentation should be disregarded by the Tribunal. 1. Because he was "totally unprepared for the hearing" as a result of being told by his insurer, until the last moment, that the matter would be settled prior to the hearing. 1. The appellant also sought leave to appeal because the decision was against the weight of the evidence as, he submitted, destructive testing is required before a conclusion can be drawn that the waterproofing membrane he had supplied and installed is defective. Without such testing, he argued, it was not possible to determine that the waterproofing is defective. 2. It is convenient to consider each of these matters, and the submissions made by the parties with respect to them, separately. Consideration of errors of law Misdescription of the parties 1. The first error of law on which the appellant relies concerns two alleged misdescriptions of the parties to the original contract in the proceedings before the CCD. The appellant submitted that the contract was between he and his wife (Helen) trading as Hunter Joinery, and Daniel and Sophie Butler (not Daniel Butler alone as stated in the grounds of appeal). 2. The proceedings in the CCD were commenced by Sophie Dilworth against the appellant alone. The appellant's wife was not named as party and the trading name was not mentioned. 3. The appellant submitted that Sophie Dilworth was not a party to the contract and had no right to commence proceedings for the enforcement of the contract. At the same time he acknowledged that Sophie Dilworth and Sophie Daniels are one in the same person. He accepted that this was not an issue he had raised at the Tribunal hearing. 4. The respondent relied on a copy of her marriage certificate to Daniel Butler, and explained that she had retained her family surname, rather than adopting his. She did not know what had led the appellant to believe her surname was Butler. Both Ms Dilworth and the appellant agreed that she, together with her husband Daniel, were parties to the contract for the renovation of their bathroom by the appellant. 5. There is no error of law in the Tribunal's decision as a consequence of Ms Dilworth commencing proceedings in her own name. She was a party to the contract and entitled to sue on it. There is no suggestion that the appellant brought this supposed difficulty to the attention of the Tribunal at the hearing, or that there was evidence before the Tribunal that should have alerted the Tribunal to it. 6. It would perhaps have been desirable if the proceedings had been commenced in the joint names of Ms Dilworth and her husband. 7. The Civil and Administrative Tribunal Act (NSW) 2013 deals with parties to proceedings and irregularities. The relevant provisions are: 44 Parties and intervention (1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party. (2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has: (a) been improperly or unnecessarily joined, or (b) ceased to be a proper or necessary party. 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 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. 1. In so far as there was an irregularity in Mr Butler not being a party to the proceedings (which we do not accept), this does not nullify the proceedings. As we have observed above, the appellant agreed that he, Mr Butler and the respondent were all parties to the contract. If the appellant had brought this matter to the attention of the Tribunal, any issue arising from Mr Butler not being a party could have been cured by his joinder. However, the fact remains that his non-joinder, if irregular, does not nullify the Tribunal's decision. We do not accept this issue gives rise to an error of law. 2. Next the appellant submitted that the decision of the Tribunal was affected by error of law because the respondent had brought proceedings against him alone, rather than his wife and himself in partnership trading as Hunter Joinery. The appellant did not draw our attention to any authority in support of this proposition. The appellant agreed that he had not raised this as an issue at the Tribunal hearing. He also commented that his wife had been joined as party she would not have chosen to attend. 3. The Uniform Civil Procedure Rules 2005 provides guidance as to the usual procedures to be followed when persons are jointly and severally liable. Rule 6.21 provides – (1) A person who is jointly and severally liable with some other person in relation to any act, matter or thing need not be a defendant in proceedings with respect to that act, matter or thing merely because the other person is a defendant in those proceedings. (2) In any proceedings in which a defendant is one of a number of persons who are jointly, but not severally, liable in contract or tort, or under an Act or statutory instrument, the court may order that the other persons be joined as defendants and that the proceedings be stayed until those other persons have been so joined. Further, with respect to the procedure to be adopted when a person carries on business under a business name, r 7.19 requires that such persons be sued in their own names. Rule 7.21 requires that they defend proceedings in their own names. 1. Whilst these Rules do not apply to the Tribunal, which is to operate in accordance with the guiding principles of resolving disputes before it justly, quickly and cheaply and with as little formality as possible, they are a useful guide as to how such issues, if they arise, can be dealt with. Once again, this matter was not raised by the appellant at the hearing below. If he truly believed his wife's absence to be an issue, an order could have been made joining his wife as a respondent. Indeed, one could be made now but neither the appellant not respondent asked for such an order. 2. There is no error of law in the Tribunal hearing proceedings and making an order against the appellant only. The amount claimed 1. The appellant claimed that the Tribunal made an error of law by unfairly awarding the respondent an amount higher than that claimed in her application to the Tribunal. 2. The respondent agreed that the amount awarded was higher than that claimed in her application, but drew the Appeal Panel's attention to the fact that the amount awarded was consistent with the costs of rectification outlined in her experts report from Mr Sim's, which report – including a Scott Schedule itemising the costs of rectification – was served on the appellant on 8 October 2014. This was one month before the hearing. The appellant agreed that this was included in the documents served on him on that date. 3. At the heart of the appellant's complaint is that it was unfair to order him to pay the respondent an amount greater than that claimed in the application. We are not persuaded that in the circumstances of this case there was any unfairness or denial of procedural fairness to the appellant. This is so because the appellant was on notice from the expert's report of the costs of rectification being claimed. To take the stance adopted by the appellant and find that an order could not be made for that amount, because of a failure to formally amend the application, would be contrary the guiding principle set out in s 36 of the Civil and Administrative Tribunal Act 2013. That section relevantly provides – (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. 1. The correct procedure was for the Tribunal to formally amend the respondent's application to record the amount she was claiming in the light of the experts report which was served by her and to be used as evidence at the hearing, but there is no denial of procedural fairness to the appellant by the Tribunal making an order for that amount. He was on notice of and able to address the amount actually claimed. Conclusion re error of law 1. It follows from the above that the appellant has not demonstrated that the decision of the Tribunal contains an error of law. As a result, we turn to consider his application for leave to appeal. The principles applicable to granting leave to appeal 1. Section 80 of the NCAT Act is concerned with internal appeals. It provides– (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. Note. Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1). (2) Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds. (3) The Appeal Panel may: (a) decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. 1. In cases where leave to appeal is sought with respect to the decisions of the CCD clause 12 of Schedule 4 of the NCAT Act relevantly provides that – (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note. Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds. (2) Despite section 80 (2) (b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if: (a) the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or (b) the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order. 1. This provision was discussed in detail by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17 in which the Appeal Panel concluded that – Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that: (1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12]. (2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where 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 - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153]. If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence. In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] ff concerning the corresponding provisions of s 68 of the CTTT Act and especially at [46] and [55]. If we are satisfied that the appellant has made out one of the grounds in clause 12 of Schedule 4 for granting leave to appeal in clause 12 of Schedule 4, we must then consider whether to exercise the discretion to grant leave to appeal under s 80(2)(b). In Collins v Urban the Appeal Panel considered a number of decisions concerning the granting of leave to appeal and summarised them as follows, at [84] – (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there. Was the decision not fair and equitable? 1. The appellant argued that the decision was not fair and equitable as a result of five separate circumstances. 2. One of these was that the Tribunal made an order for more than the amount claimed by the respondent in her initial application to the Tribunal. We have already outlined, at paragraphs 22 to 25 above, our reasons for deciding that this did not constitute and error of law. Central to that conclusion was that the appellant had proper notice of the amount actually claimed and awarded, and was not denied procedural fairness. For the same reasons, that circumstance did not result in the decision being not fair and equitable. 3. Similarly, the appellant's contention that the decision was not fair and equitable because the Tribunal took into account material served on him on 8 October 2013, when the Tribunal had ordered the respondent to serve that material on him by 7 October 2014, must fail. In the grounds of appeal the appellant asserted because of the late service he could not respond, and that as a consequence the Tribunal should have disregarded the respondent's material. In response to this the respondent asserted that she had posted the material to the appellant on 6 October 2014, and pointed out that that there was more than a month between the date of service and the hearing in which the appellant could respond. 4. We agree with the respondent that because there was more than a month before the hearing, when the material was served, that late service of her material on the appellant did not result in any procedural unfairness. Indeed, to require the Tribunal to disregard her materials because they were served one day late, as argued by the appellant, would, in the circumstances, be procedurally unfair to the respondent. There is no substance to this aspect of the appeal. 5. Next the appellant argued that the hearing was not fair and equitable because the Tribunal: 1. Disregarded his experts report because it did not include a CV. 2. Gave undue significance to the Scott Schedule prepared by the respondent's expert, and to the fact that neither he nor his expert had completed it. In support of this submission he made the point that the Tribunal had not ordered the parties to provide a Scott Schedule. 1. In order to assess the significance of these claims it is necessary to have regard to what the Tribunal said about the expert reports - Ms Dilworth relied upon an independent expert report from Mr Sim of Awesim Pty Ltd. Mr Magill relied upon an independent expert report from Mr Hutchinson of Craig's Building Advisory Services Pty Ltd. Although Mr Hutchinson stated that a copy of his CV was attached to his report it was not. Neither Mr Magill nor Mr Hutchinson completed the Scott Schedule prepared by Awesim Pty Ltd. Mr Hutchinson estimated that the necessary rectification work on Ms Dilworth's bathroom would cost $3,785.00 plus GST. Mr Hutchinson did not support this estimate with itemised costing. … The Tribunal accepts Mr Sim's report in relation to the manner and cost of rectification. 1. NCAT Procedural Direction 3 Expert Witnesses (dated 7 February 2014) sets out a code of conduct for expert witnesses and an explanation of how expert evidence may be given in proceedings before the Tribunal. Paragraph 16(a) of the code of conduct requires every expert to include "the expert's qualifications as an expert on the issue the subject of the report." 2. Contrary to the appellant's assertions, the Tribunal did not say it was disregarding Mr Hutchinson's report because there was no CV attached. Rather the absence of a CV was one of a number of factors that led the Tribunal to prefer Mr Sim's expert report. There is nothing unfair or inequitable about that aspect of the Tribunal's decision making. The extent and relevance of an expert's qualifications and experience play a significant role when evaluating their expertise, and the weight to be given to their reports and opinions. The absence of any details of an expert's qualifications and experience will necessarily affect the Tribunal's deliberations as to whether or not it accepts the expert's expertise, and concerning the weight to be given to any opinion advanced by the expert. 3. In oral submissions the appellant asserted that he had removed the CV from Mr Hutchinson's report, being unaware of its significance, and that he had been denied the opportunity during the hearing to take time (an hour or more) to go and fetch it. The Practice Direction on Expert Witnesses is publicly available on the NCAT website and was available to the appellant. In those circumstances it was not unfair or inequitable for the Tribunal to refuse to adjourn the hearing so that he could obtain and serve Mr Hutchinson's CV, when the Tribunal had ordered him to serve all his materials more than a month before the hearing. 4. As to the Scott Schedules, the appellant is correct that there was no order made by the Tribunal for the provision by the parties of a Scott Schedule in this case. A Scott Schedule sets out in tabular form the position of each party with respect to each item in dispute. In a building case a Scott Schedule usually sets out each item of defective and/or incomplete work, the parties' respective position in respect to it, and their respective views of the cost of remedying it (if any). When fully completed it provides a detailed and itemised costing of the costs of repairs from each party's perspective. While the tribunal may order a Scott Schedule, a party (or their expert) may use one of their own volition without an order. When this is done, it is simply an aspect of the evidence relied upon by that party. If it is done, the other party is on notice of the matters itemised in the Scott Schedule and is entitled to reply to it. 5. The Tribunal noted that neither Mr Magill nor Mr Hutchinson had completed the Scott Schedule prepared by Mr Sims. That is, they had not taken objection to or commented upon the matters itemised in that Scott Schedule. There was no order that they do so. It was in those circumstances a matter for them. They had the opportunity to do so. 6. Mr Hutchinson in his report had not provided an itemised costing of the necessary repairs to the respondent's bathroom, but had merely stated an "Estimated cost $3,795 +GST", without any indication as to how that figure was calculated. This is to be contrasted with the itemised costing in the Scott Schedule provided by Mr Sims. 7. The Tribunal's decision makes it clear that it preferred the itemised costing, and that that the provision of Scott Schedule to the appellant had provided both his expert and him with an opportunity to respond with an itemised costing of their own. The appellant had every opportunity to respond to it. He did not. There is no unfairness or inequity in this aspect of the Tribunal's decision. 8. Finally, the appellant claims that the decision was not fair and equitable because he had not prepared sufficiently for it, as his insurer had told him it would settle. This is creative blame shifting. How the appellant's own lack of preparation can result in the decision of the Tribunal being unfair or inequitable is a matter he has not explained. Insofar as the Tribunal's decision reflects the poor preparation and presentation of the appellant's case that does not demonstrate any unfairness or inequity in the decision. Was the decision against the weight of the evidence? 1. The appellant asserted that the Tribunal's decision was against the weight of the evidence because, in his view, it was not possible to draw a conclusion that the waterproofing in the bathroom was defective without destructive testing. He had put this proposition to the Tribunal, which he says then wrongly found that the waterproofing was defective. 2. The respondent pointed out that there was evidence that the waterproofing was defective before the Tribunal, in the form of Mr Sim's report and a report Mr Phil Ward, a Senior Building Inspector from NSW Fair Trading. The Appeal Panel also noted that Mr Hutchinson's report cited four instances in which water was leaking, and the waterproofing inadequate. 3. In our view it cannot be argued that the conclusion that the waterproofing was defective was one that was not reasonably open to the Tribunal. It was a conclusion on which the three expert reports before the Tribunal agreed. The only dissenter was the appellant himself, who argued that destructive testing was necessary for that conclusion to be reached: an opinion that was not shared by his own expert. The Tribunal's finding that the waterproofing was defective was consistent with the majority of the evidence before it. It is not a conclusion that was against the weight of the evidence. Conclusion 1. For the above reasons we are not satisfied that the decision of the Tribunal was either not fair or equitable or was against the weight of the evidence. As a consequence the appellant is refused leave to appeal. 2. His appeal based on the error of law grounds must also fail as those errors of law are not made out. 3. We make the following orders: 1. Leave to appeal refused. 2. The appeal is otherwise dismissed. 3. The stay of the orders made by the Tribunal on 17 November 2014 is lifted. 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: 20 May 2015