Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Massoud Dogmesaz t/as Symphony Kitchens v Margaret Christine Moss [2015] NSWCATAP 95 Hearing dates: 24 April 2015 Date of orders: 22 May 2015 Decision date: 22 May 2015 Jurisdiction: Appeal Panel Before: The Hon D A Cowdroy OAM QC, Principal Member and P H. Molony, Senior Member Decision: 1. Leave to appeal is refused. 2. The appeal is otherwise dismissed. 3. The Appellant pay the costs of the appeal. Catchwords: Practice and Procedure: Application for leave to appeal: appellant failing to attend callover and hearing-: no adequate explanation for such failure: no arguable defence; leave refused [include all causes listed in decision]. Legislation Cited: Civil and Administrative Tribunal Act 2013 No 2 (NSW) Home Building Act 1989 . Cases Cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; Collins v Urban [2014] NSWCATAP 17 at [84]; Aon Risk Services Australia Pty Limited v Australian National University [2009] HCA 27; Queensland v J. L. Holdings Pty Ltd (1997) 189 CLR 146; Category: Principal judgment Parties: Massoud Dogmesaz t/as Symphony Kitchens (Appellant) Margaret Christine Moss (Respondent) Representation: Appellant Mr Adams: Respondent: Mr T Martmann File Number(s): AP 15/03608 Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: [2014] NSWCAT Date of Decision: 31 December 2014 Before: P Boyce, Senior Member File Number(s): HB 14/19792 REASONS FOR DECISION 1. By Notice of Appeal filed on 22 January 2015, the Appellant pursuant to s80(2)(b) of the Civil and Administrative Tribunal Act 2013 No 2 (NSW) seeks to appeal the orders made by Senior Member P Boyce on 31 December 2014. Leave to appeal is however required under Rule 12, Part 6 of Schedule 4 to such Act. The orders were as follows:- (1) The Respondent, Massoud Dogmesaz, is to pay the applicant, Margaret Christine Moss, damages in the amount of $57,878.67 on or before 22 January 2015; (2) The Respondent, Massoud Dogmesaz, is to pay the applicant, Margaret Christine Moss, costs assessed by the Tribunal at $9,756.55 on or before 22 January 2015. 1. The orders were made as a result of hearing that took place on 4 November 2014 and the decision was delivered on 31 December 2014 in favour of the Respondent. 2. In the proceedings, the Respondent claimed that the Appellant, a builder, had failed to comply with the statutory warranties in s 18B of the Home Building Act 1989 in respect of renovations being undertaken by the Appellant in the Respondent's one-bedroom home unit in Mosman ("the unit"). Such claim was upheld and the orders made by the Tribunal represented the amount of damages payable for incomplete and defective home building works carried out in the Appellant's home unit under an agreement made between the Appellant and the Respondent ("the agreement"). 3. The renovation works to be carried out by the Appellant comprised renovation works in the kitchen, laundry, living room and bathroom of home unit. The work remains incomplete. There is evidence that the building work was abandoned by the Appellant. 4. The hearing proceeded ex parte in view of the Appellant's failure to attend the hearing. The decision of the Tribunal member records the Notice of Hearing addressed to the Appellant dated 8 October 2014 advising that the time and location of the hearing was on the file. The Registrar had provided such notification as referred to in a statutory declaration subscribed by the Registrar on 4 June 2014. The Tribunal stated it was satisfied that the Notice of Hearing was posted to the Appellant at the address which he used as his business address. The decision states:- "The Tribunal is satisfied that the Respondent [Appellant] had been given notice of the hearing. The Respondent [Appellant] failed to attend the hearing without putting any explanation before the Tribunal and the Applicant [Respondent] was prepared and ready to proceed." Grounds of appeal 1. Grounds of appeal are identified as follows:- 1. There was a substantive miscarriage of justice due to the fact that the Appellant did not present his case before the Tribunal and was not heard by the Tribunal. 2. There was a lack of procedural fairness in permitting an ex parte [sic] hearing. 3. As a result of ground 2 the decision was not fair and equitable Hutchings v CTTT [2008] NSWSC 717 at [35]. Leave to appeal 1. The discretion of the Appeal Panel to grant leave to appeal arises if such Tribunal is satisfied that: 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). See cl 12(1) of Sch 4 of the Civil and Administrative Tribunal Act 2013. 1. The Appellant applies for leave to appeal on the grounds that medical reasons, namely an eye condition and depression, prevented him from dealing with the procedural matters of the original proceedings. The Appellant relies on a medical report of Dr J Antoon. The Appellant submits that as a result of his medical and depressive conditions, he did not defend the respondent's claim, lodge a cross-claim for unpaid work carried out at the request of the Respondent, and did not seek legal representation. The Appellant submits that the rectification work required to be performed at the Respondent's unit could be carried out at a cost of less than $2,000.00 whereas at the hearing, the Respondent relied upon an architect's report, which assessed the rectification for the defective and incomplete work in the amount of $42,150.00. 2. The Appellant submits that he has a cross-claim in excess of $15,000.00. Reply 1. By reply, the Respondent asserts that the Appellant had adequate notice of the proceedings and failed to attend at any listing of the matter or at the hearing; that the proceedings were commenced after the Appellant failed to carry out work under rectification orders issued to him by the OFT; that there was no lack of procedural fairness or miscarriage of justice; that the Appellant appears to rely solely upon a medical certificate which was never provided to the Tribunal below. 2. The Respondent submits that she has been living in her home unit in the condition it was in when the Appellant abandoned the work and requires funds to rectify the current defects. The Respondent rejects the claims of the Appellant contained in his affidavit filed in support of his appeal which suggests that the Appellant settled the Respondent's claims against the Appellant. Leave to appeal 1. In accordance with the principles applicable for leave to appeal, the Appellant must satisfy two requirements. First, the Appellant must show a reasonable explanation for his failure to attend the hearing. Second, he must show that he has a strong prima facie defence to the claim: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 where Wilcox J considered an application for leave to proceed out of time under the analogous extant rules of the Federal Court of Australia. Evidence of any prejudice to the respondent is also a factor for consideration. Delay 1. We shall consider the first ground relied upon by the Appellant, namely that he was unable, because of medical conditions, to attend to the preparation and or the hearing of these proceedings when they came before the Tribunal member on 4 November 2014. The medical conditions relate to surgery for an eye condition, and a depressive condition. 2. A medical report of the Berowra family medical practice dated 10 March 2015 signed by Dr John Antoon has been provided in support of the application for leave. There is no report of Dr A Chand as referred to in Attachment A to the Notice of Appeal. 3. Dr Antoon, a General Practitioner, states that the Appellant has been a patient of his practice since 9 April 2009. Until 18 December 2013, there is no medical issue concerning the Appellant. On that day, the Appellant was diagnosed with a retinal detachment of his left eye. Surgery was undertaken on 24 December 2013, and on 13 May 2014. Further, surgery was required. The details of the consultations from April 2014 are set out, namely 4 April 2014, 26 and 30 May 2014, 14 June 2014, 27 August 2014, 16 October 2014, 16 December 2014 and 14 and 30 January 2015. 4. In this report dated 10 March 2015, Dr Antoon states: "Furthermore, he had suffered physical symptoms of chest pain and breathlessness which was investigated but in respect would probably fit into a diagnosis of anxiety depression." 1. In addition to the eye condition, the medical reports state that the Appellant had undergone a family separation in late 2014. 2. The Appellant has not been receiving any treatment for any depressive condition, and there is no evidence of any current medical treatment being received by the Appellant. Merits 1. According to the decision, the agreement was reached between the Appellant and the Respondent in the early part of 2012 to carry out the renovation works in the unit. The work was to be completed by June 2012. For an unexplained reason, the work was not completed. In November 2012, the Respondent retained an architect, Mr B Inwood, who provided a report which identified numerous defects in the work ('the first Inwood Report'). A second report was prepared by Mr Inwood on 9 September 2013 ('the second Inwood Report'). 2. On 31 May 2013, in the presence of the Appellant and the Respondent, a Fair Trading inspector visited the site and the Appellant agreed to "complete works as verbally quoted to the consumer's [Respondent's] satisfaction by 12 June 2013." A Rectification Order was issued by the NSW Fair Trading on 31 May 2013. 3. The Appellant did not comply with such order. 4. The Tribunal accepted the second Inwood Report as the expert report of the defects and of the incomplete works of the builder. It was on the basis of such report that the award was made. However, added to the sum was an amount of damages resulting from the fact that the Respondent was unable to occupy the premises because of their incomplete condition. For this reason, the Tribunal made an order incorporating an amount of $5,000.00 for such loss and an additional amount of $3,857.30 for light fittings, washing machine, and an electrician who carried out work in the unit. 5. Significantly, the agreement provided that works undertaken by the Appellant were to be executed and completed by June 2102, prior the time when the Appellant developed his eye condition in December 2013. Accordingly, we reject the contention that medical reasons prevented the Appellant from completing the works as required. 6. The Appellant asserts that the rectification costs amount to $413.00. No expert evidence has been led in support of this contention, and no attempt has been made to gain access to the premises for the purpose of such report. The only material produced is a self-serving statement of the cost of rectification which the Appellant considers is reasonable. The Appeal Panel could not be satisfied that, based upon this document, the Appellant has a strong case to be argued. 7. The overwhelming evidence before the Tribunal Member satisfied him that there remained significant remedial works to be undertaken. That evidence comprised the report of Chris Hall, the reports of Brad Inwood, and the itemisation of such works contained in the Scott Schedule. Findings 1. The principles to be applied when considering an application for leave to appeal are referred to in Collins v Urban [2014] NSWCATAP 17 at [84] when the Appeal Panel held, inter alia: "(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 ereror 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 Commissionier of Police, NSW Police Force [2014] NSWCATAP 10 at [45];" 1. In respect of the proceedings instituted by the Respondent in this Tribunal, we note that the Appellant chose to play no part. He did not attend any listing of the matter and he did not attend the hearing. 2. Specifically, the Appellant did not attend the listing on 9 May 2014; nor a directions hearing on 26 June 2014; nor a mention on 31 July 2014; nor respond to the Scott Schedule submitted to him on 31 July 2014. The hearing commenced on 26 September 2014, but there was no appearance of the Appellant. The hearing was re-scheduled on that day to 4 November 2014. On 26 September 2014, the Respondent's solicitor wrote to the Appellant. There was no response. 3. The secretary to the Respondent's solicitor had telephone conversations with the Appellant on 26 June 2014 and 31 July 2014. No mention was made to her by the Appellant to indicate any kind of illness or disability except on this appeal. 4. We note that according to the schedule of medical consultations, there was no medical consultation on the date of the hearing which would have prevented him from attending. Nor does Dr Antoon suggest that there was any medical condition which prevented the Appellant from attending to his daily business, or attending the hearing. 5. The Appellant gave oral evidence to the Appeal Panel. In it, and in his statement, the Appellant acknowledged that since 9 April 2014, NCAT had forwarded him various notices on 29 April 2014, 9 May 2014, 20 May 2014, 28 May 2014. 6. He stated however:- "To my best memory and belief, I do not remember ever receiving a notice setting the matter down for hearing. I do admit I did not make enquiries as to the hearing date. I was not aware that the hearing was set down for 4 November 2014." 1. Having considered the fact that all other notifications were received by the Appellant, and considering that he failed to attend the Tribunal at any time and chose to ignore the notices of hearing and telephone advices concerning the hearings, we are not satisfied that he did not receive notice of the hearing date. No lack of procedural fairness has occurred. 2. The Appellant's legal adviser has referred us to several authorities. Of particular relevance is that of the High Court of Australia in Aon Risk Services Australia Pty Limited v Australian National University [2009] HCA 27. That decision is authority for the principle that litigation is to be managed efficiently: see [90], and that a litigant does not have the right to protract litigation. We reject the submission that the High Court's decision in Queensland v J. L. Holdings Pty Ltd (1997) 189 CLR 146 would require us to grant a rehearing. That decision concerned the principles which should apply with respect to an amendment of proceedings: before us is the more fundamental question of whether there has already been afforded procedural fairness, and whether the Appellant has demonstrated a good prima facie defence. 3. We find that the Appellant was afforded the opportunity of defending the claim against him but deliberately chose to ignore the proceedings. 4. We observe that whilst the Appellant asserts that he has a cross-claim against the Respondent, which he wishes to pursue, apparently alleging variations to the contract. No explanation is offered as to any reason, except an assertion of depression, for his failure to defend the proceedings or file a cross-application. No draft cross-application has been produced before the Appeal Panel. 5. We also note that the Appellant claims to have reached an agreement with the Respondent to settle the dispute The Respondent denies that any such settlement was made. 6. The Appellant also asserts that the Tribunal Member accepted the evidence of an architect in making his assessment of damages. The Appellant submits that the report of the OFT indicates that work was required which was significantly less in extent and cost than that referred to in the architect's report. 7. We consider that the Tribunal did not err in accepting the architect in preference to the OFT Report. The architect was making an assessment of the work which he considered was necessary. This may have been more extensive than the OFT Report, but the Tribunal did not err in accepting it as representing the nature and extent of the work required to complete the renovation works in a proper and workmanlike manner. 8. In these circumstances, the Appeal Panel is not satisfied that any medical consultation existed which prevented the Appellant from completing the contracted work, nor from participating in the hearing before the Tribunal Member. We note that the Appellant's representative sought to have Dr Antoon available to give evidence before us concerning his medical condition, but that the doctor did not make himself available. Dr Antoon's report does not establish that the Appellant's eye condition prevented him completing the works or attending the Tribunal to defend the claim. It does not say that he was diagnosed with a depression which prevented him from working or attending to important matters such as defending Tribunal proceedings. As a result, we find that the Appellant has failed to explain his absence from the hearing. 9. As to the merits, no expert report has been provided by the Appellant which would suggest that the Appellant has a good defence to the claim of the Respondent, and that if leave were granted, the Appellant has strong prospects of success. The self-serving statements of the Appellant as to the rectification costs do not satisfy the requirement that an applicant for leave to appeal must demonstrate a good defence, nor has any attempt been made to prepare a cross-claim. 10. To satisfy the requisite test, the appellant must demonstrate that a different result was "likely" or would be likely to result if leave were granted: see Gallagher v R (1986) 160 CLR 392. 11. We do not accept, in view of the above, that the Appellant has not been provided with a reasonable opportunity of appearing and presenting his case: Aon Risk Services Australia Pty Limited v Australian National University [2009] HCA 27. Such finding disposes of grounds 1 and 2 of the grounds of appeal. As to the third ground of appeal, there is insufficient material before the Appeal Tribunal to enable it to conclude that the decision was "not fair and equitable": See Hutchings at [35]. It follows that we do not find that the Appellant may have suffered a miscarriage of justice: Collins v Urban at [80]. 12. We refuse leave for the appeal to be brought on the basis that the Appellant has failed to discharge the required onus. Orders 1. The Tribunal orders: 1. Leave to appeal is refused. 2. The appeal is otherwise dismissed. 3. The Appellant pay the costs of the appeal. 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: 22 May 2015