Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gangadharan Valiyapurayil and Usha Gangadharan v Mohd Ertaz-Ulhaque Chawdhury [2015] NSWCATAP 121 Hearing dates: Determined on the papers Date of orders: 25 June 2015 Decision date: 25 June 2015 Jurisdiction: Appeal Panel Before: D Patten, Principal Member R Titterton, Senior Member Decision: Leave granted to appeal out of time. Appeal dismissed. Orders made on 15 July 2013 below confirmed. No order as to costs. Legislation Cited: Home Building Act 1989 Category: Principal judgment Parties: Gangadharan Valiyapurayil and Usha Gangadharan (Appellants) Mohd Ertaz-Ulhaque Chawdhury (Respondent) Representation: Counsel: Solicitors: File Number(s): AP 14/57129 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer Trader and Tenancy Tribunal Date of Decision: 15 July 2013 Before: M Eftimiou, General Member File Number(s): HB 13/29831 REASONS FOR DECISION 1. On 15 July 2013 the Tribunal below heard and determined proceedings under the Home Building Act. There were 2 claims in respect of residential premises the subject of a Home Building contract (the Contract). In the first of the claims the builder sought $10,700, being his alleged entitlement above the agreed contract price of $120,000, for a variation of the building work. 2. The other claim by the home owners was for damages quantified at $6,000 for defective workmanship and for work not done in accordance with the Contract. Both claims were dismissed. 3. In quite extensive reasons published on 16 July 2013 the Tribunal concluded that it was not satisfied that the builder (the present respondent) had complied with cl 13 of the Contract in relation to the variation claim. It also expressed itself as not satisfied that the variation work that was completed was different in scope to the work provided for by the Contract. 4. In relation to the claim for defective work the Tribunal said that apart from producing some photographs and listing various complaints the home owner (the present appellants) had produced no expert evidence to support their claim. 5. A Notice of Appeal was filed by the appellants on 27 November 2014, many months out of time. It listed grounds of appeal as follows: The first-hand evidences of the applicant demonstrated with a number of photographic evidence of inferior workmanship directly related to the 43 Cullens Road property were not at all considered by the Member. As an arbitrator the member could have given a second opportunity to the owner applicant to present the required third party opinion by an order or at least an oral advice while presiding the hearing. Consequent to the Tribunal member's order, the applicant-an old age pensioner had to resort to the Consumer Affairs governing body to obtain fair consideration and justifiable protection with a transparent revelation of his previous encounter with the CTTT by clearly quoting the above application number, the one against which he is now appealing. Subsequently, pursuant to the Fair Trading Department's guidance, with the support of the department's Building Inspection Report and Rectification Order, the applicant hoped to find a prolific result by applying again with NCAT. But his second application also had failed as the Tribunal ran out of jurisdiction and was forced to apply the principle of Res judicata, unfortunately, even as the applicant presented all evidences along with two third-party opinions to support his application with genuine grievances. 1. The respondent filed a reply to the appeal on 14 January 2015. The reply is not altogether easy to understand but it seems to be focussed on the Tribunal's rejection of the claim for a variation as evidenced by the terms of a Statutory Declaration by the respondent annexed to the reply: "All of my statements are absolutely true in respect of my reply to appeal and claim for quantum meruit for the extra works I carried out for the construction of extention of 43 Culleen Road owned by Mr and Mrs Gangadharan. In appeal application Mr Ganga clearly hid the information of modified da where council wanted to extent the height of the building from 2.4 meter to 3.2 meter. Mr and Mr Ganga denied to pay the extra works carried out as per modified da. As per building contract signed by me and owners, clearly mentioned that contract pric do not include unforseen matters or matters required by council. Alas owners do not want to pay extra works we carried out which is injustice to me. Contract also mentioned on page 7 of 29 that 'any extra works directed by da conditions' are excluded items. But again owners do not want to understand this simple variations matter. Although I raised these issues during construction times, but owner do not want to sign variation claimed by me as per contract. (Spelling etc errors are in the original) 1. Some explanation for the delay in filing the notice of appeal may be gleaned from the document headed "Additional points and evidence supporting the appeal" dated 12 October 2014. The document referred to the fact that the appellants brought fresh proceedings in the Tribunal which were defeated by application of the doctrine of res judicata. 2. In the circumstances, we think we should give leave to appeal out of time. However, it is clear that the notice of appeal does not assert any error of law on the part of the Tribunal below. Nor have we been able to discern such an error. As it seems to us, the Tribunal appropriately found that there was no evidence before it supporting the claim for defective workmanship or the claim for work done outside the ambit of the Contract. That being so the appeal must be dismissed. 3. In so far as the respondent's reply may be regarded as an appeal against the dismissal of his variation claim, we should say that in our opinion such an appeal should also be dismissed. It was the subject of careful analysis in the Tribunal below and in our view no error of law is disclosed by that analysis. On the face of it the Tribunal's decision was plainly correct on the evidence available to it. 4. In the result we make these orders: 1. Leave to appeal out of time granted. 2. Appeal dismissed. 3. Orders made on 15 July 2013 below confirmed. 4. No order as to costs of 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. 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