Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Laurence and Tanya Matty v Scott and Julie Boyd t/as Vast Constructions [2015] NSWCATAP 100 Hearing dates: 24 March 2015 Date of orders: 25 May 2015 Decision date: 25 May 2015 Jurisdiction: Appeal Panel Before: Dr JG Renwick SC, Senior Member Ms K Rosser, Senior Member Decision: The appeal is allowed in part. Order 2 made on 28 October 2014 is set aside. The appellants are to pay the respondents the sum of $20,130.86 forthwith. The appeal is otherwise dismissed. Catchwords: Appeal – substantial miscarriage of justice – not fair and equitable Legislation Cited: Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Laurence and Tanya Matty – appellants Scott and Julie Boyd - respondents Representation: Both parties self-represented File Number(s): AP 14-54324 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 28 October 2014 Before: Mr G Meadows, Senior Member File Number(s): HB 14/02361 REASONS FOR DECISION Introduction 1. Some years ago, the respondent undertook building work for the applicants in their home. They were dissatisfied with aspects of that work and began proceedings in the Consumer Trading and Tenancy Tribunal, the predecessor to the Tribunal, ('the former Tribunal'). On 2 October 2013, the former Tribunal made completion and rectification orders which are noted below and required those works to be done within 90 days. On completion of those works the applicants were to pay the respondent the sum of $26,450.36. 2. In 2014 this Tribunal began operation. By operation of the Civil and Administrative Tribunal Act 2013 ('the Act') Schedule 4 Clause 8 an application for renewal of orders made by the former Tribunal could be made to the Tribunal. The applicants made such an application. It was heard by the Tribunal member who had made the original orders in 2013 in the former Tribunal. The Tribunal has a discretion in considering whether or not to grant a renewal application. On 28 October 2014 the Tribunal refused the application to renew, the ultimate finding being that the earlier Orders 1 and 2 (that is to say, the rectification and certification orders) had been complied with, "to the extent that the respondent was permitted by the applicants to do so". The applicants were then ordered to pay the previously ordered sum "forthwith". 3. There being no question of law identified by the applicants, leave to appeal is sought on the grounds that the decision was unfair and inequitable and against the weight of evidence. For the following reasons, we have decided to grant leave and allow the appeal in relation to the cost of the applicants procuring the engineering certificates which the respondent had previously been ordered to obtain. We otherwise refuse leave and dismiss the appeal. The Facts 1. As noted, the applicants engaged the respondent to conduct certain building works. The applicants were dissatisfied with aspects of those works and brought proceedings in the former Tribunal in 2013 pursuant to the Home Building Act 1989 (NSW). The matter was decided on 2 October 2013 with the following orders made: 1. In relation to claim number HB 12/20922 the builder is to complete and rectify the following works: 1. Repair leaks to carport roof; 2. Repair "undulations" to tiles on carport roof; 3. Adjust kitchen and bathroom cabinetry; 4. Sand front entry deck (finishing to be completed by owners); 5. Repair stacker door frame and replace fly screens; 6. Put stormwater pipes underground; 7. Silicon seal in wet areas; 8. Repair entry handrails; 9. Repair internal staircase ("bleaching"); 10. Repair termite barriers' 11. Replace flanges behind cistern stopcocks; 12. Repair eaves and gutters to southern elevation of "alfresco deck area"; 13. Install shut off valve to hot water tank; 14. Relocate geo-fabric, required waterproofing and ag drain in storage area; 15. Remove builder's waste; and 16. On completion of all the above items, provide all certifications to the owners including an engineering certificate for the garage concrete slab and the block retaining wall sunder the garage slab. 1. The above works are to be completed within 90 days of the date of these orders. On completion of the works Scott and Julie Boyd t/as Vast Constructions are to provide all relevant certifications and warranty documents to Laurence and Tanya Matty. 2. In relation to claim number HC 12/30737, on completion of the above works Laurence and Tanya Matty are to pay Scott and Julie Boyd t/as Vast Constructions the sum of $26,450.36. 1. In the course of delivering the reasons for those orders, Senior Member Meadows said at [37]: "…it is obvious that the defective items claimed by the owners are relatively minor. This was a large project and all the evidence suggests that the builder carried out the works to a generally high standard." 2. The ninety days referred to in the orders expired on 2 January 2014. Prior to that date, there had been correspondence between the parties as to the adequacy of the rectification works undertaken by the respondents on the appellants' property as required by the orders. There was an inspection by the applicants' builder in the absence of the respondent and their experts on 6 January 2014, and an application for renewal was lodged in this Tribunal on 13 January 2014. 3. Subsequently, but before the matter came on for hearing, there was an inspection of the property by the respondent's expert, Mr Ian Anderson, who provided a report which concluded "Mr and Mrs Matty made it abundantly clear during the inspection that they will not permit Mr Scott Boyd any further access, and they are obtaining their individual quotations." 4. The matter came on for hearing of the renewal application on 2 June and a decision was made on 28 October. The essential findings were as follows: 5. At all relevant times, the respondent's builder was ready, willing and able to return to the site in the event that the parties' respective experts agreed that further works were still required in order for the respondent fully to comply with the orders made by the former Tribunal. However, the applicants had decided to prevent further access by, or meetings with, the respondent. This was manifested in a number of incidents. 6. When the respondent communicated with the applicants in December 2013, they requested an inspection be held on site with both parties present. However, as noted, the inspection did not involve the respondent or their expert, who were in fact not invited. The Tribunal noted an email from the applicants' expert to the respondent, which noted that they had not been there and concluded "the Mattys and myself did not involve you or Kelvin [the respondents' expert] at that time as we believe that you may need time to consider the items rather than [putting you]…under any pressure while at an inspection". The Tribunal concluded that that explanation was "quite suspicious" and did not accept it. The Tribunal noted that the renewal application was lodged seven days later. At the hearing before us the applicants sought to distance themselves from this email however it was sent by their expert on their behalf and was not disavowed by them at the time. 7. The Tribunal went on to find that the applicants deliberately sought to prevent any further meetings between the parties' experts or between the parties in person, because they had already decided to bring the renewal application. 8. The Tribunal concluded that the applicants had not behaved reasonably, that the respondent should have had an opportunity to return to the site, but was denied that opportunity, and in the circumstances, the Tribunal was not prepared to convert the original orders into a money order (such an order was sought, but refused, in the 2013 proceedings), and so the renewal application was dismissed with the ultimate finding that the respondent had complied with orders 1 and 2 "to the extent permitted by the applicants to do so", and that the applicants were to pay the previously ordered sum "forthwith". Legislation 1. Schedule 4 to the Act provides: Renewal of proceedings in respect of certain Division decisions (1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act. (4) When proceedings have been renewed in accordance with this clause, the Tribunal: (a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or (b) may refuse to make such an order. (5) This clause does not apply if: (a) the operation of an order has been suspended, or (b) the order is or has been the subject of an internal appeal. 1. For the reasons given by the Member below, the Tribunal had jurisdiction, in the circumstances of this case, to grant a renewal application in relation to the orders made by the previous Tribunal. 2. The decision to grant a renewal application is discretionary, as the word 'may' suggests. 3. The Act provides for appeals as of right on a 'question of law': s 80(2)(b) and also permits appeals with leave of the Appeal Panel. The applicants do not suggest there is an appeal on a question of law. They seek leave to appeal from the decision. 4. The decision below was made in the Consumer and Commercial Division of the Tribunal. It was a "Division decision" within the meaning of cl 12(1), Schedule 4 of the Act: see the definitions of "the Division" and "Division function" in cl 1 and the provisions of cl 3(1) of Schedule 4. We must be satisfied of the matters set out in cl 12 of Schedule 4 to the Act before the discretion to grant leave can be exercised. That clause provides: 12 Limitations on internal appeals against Division decisions (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). 1. These provisions were examined in Collins v Urban [2014] NSWCATAP 17 at [65]-[79], which also decided that even if the Appeal Panel is so satisfied, there is a discretion to grant leave, and at that second stage further principles are to be considered, namely (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…; (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,… (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: [citations omitted]. Consideration 1. As already noted, no question of law was identified or asserted by the applicants. Leave to appeal is therefore required. 2. In that regard, it is not sufficient, although it is necessary to establish that a finding is "against the weight of evidence" or that it is "not fair and equitable" in the circumstances. A further finding fitting one of the categories in Collins v Urban is generally required. 3. We have considered the evidence upon which the Tribunal based its findings as to the refusal to allow the Respondents to meet onsite and to have an opportunity to rectify any defective work. 4. After the hearing concluded a later email was received from the applicants to which we have had regard. 5. With one exception, we do not consider those findings by the Tribunal below to be against the weight of evidence. To the contrary, the evidence supports those findings. Nor has it been demonstrated that the Tribunal's findings were not fair and equitable. Even if we are wrong in this regard, we would not exercise our discretion in relation to any of the categories in Collins v Urban. 6. The exception relates to the requirement in the original order that "on completion of all the above items, [the Respondent is to] provide all certifications to the owners including an engineering certificate for the garage concrete slab and the block retaining walls under the garage slab." 7. It was common ground in the appeal that such certificates had not been provided. It is patently unsatisfactory for those certifications not to be provided as that will prevent the applicants from obtaining a final occupation certificate, which is necessary in order to comply with the requirements of the local council and would no doubt be an impediment to any sale of their property should they wish to sell at any time in the future. We consider this result to be unfair or inequitable, given that the certificates were not provided within the 90 day period in relation to construction which had already taken place. We also exercise our discretion to grant leave on the basis that it would cause a significant injustice to the applicants, amounting to a substantial miscarriage of justice, if left this situation was left unremedied. The question then is what remedy to grant, noting we possess all of the powers of the Tribunal below: see s 81 of the Act 8. The applicant provided a quote from Construction X-Ray for $6,319.50. During the hearing, we enquired of Mr Boyd, who appeared for both respondents, whether, were we to grant leave in relation to the construction certificate issue, he would be satisfied with the amount of that quote being deducted from the money otherwise required to be paid by the applicants to the respondent. In essence, Mr Boyd indicated that he would only be so satisfied if the applicants agreed that the respondents had no further obligation to obtain the certifications in those circumstances. During the hearing Mrs Matty indicated her concurrence with that circumstance. 9. Accordingly, in the circumstances, we are prepared to grant leave to appeal only in relation to the issue of non-compliance with the previous order of the Tribunal concerning the provision of the engineering certificates. In the circumstances, the appropriate order which we make, being an order which could have been made below, is that that cost of obtaining engineering certificates should be deducted from the amount payable to the respondents, leaving the sum of $20,130.86 to be paid. It follows from this order that the respondents have no further obligation to provide the engineering certificates. In the circumstances, the Tribunal's orders are as follows: 1. The appeal is allowed in part. 2. Order 2 made on 28 October 2014 is set aside. 3. The appellants are to pay the respondents the sum of $20,130.86 forthwith. 1. The appeal is otherwise dismissed. 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: 25 May 2015