Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Concourt Pty Ltd v Victoria Mary Kerr [2015] NSWCATAP 106 Hearing dates: 17 April 2015 Date of orders: 09 June 2015 Decision date: 09 June 2015 Jurisdiction: Appeal Panel Before: Dr J Renwick SC, Senior Member S Thode, Senior Member Decision: In relation to Appeal 14/59781, the Tribunal orders that: 1. The application for leave to appeal out of time is dismissed. 2. The appeal is otherwise dismissed. In relation to Appeal 15/10590, the Tribunal orders that: 1. The appeal is allowed in part. 2. The appellant is to file and serve orders giving effect to these reasons within 7 days together with no more than 3 pages of explanatory submissions on this and costs. 3. The respondent is within a further 7 days, to file and serve any alternative orders together with no more than 3 pages of submissions in response as to relief and costs. Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – Appeal Panel – extension of time returned – error of fact or law – appeal allowed in part Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Cases Cited: Amaca Pty Ltd v Tullipan [2014] NSWCA 269 Australian Broadcasting Tribunal v Bond Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 Coulton v Holcombe [1986] HCA 33 Fitzallen v Roseberry-Toorak Football Club [2003] TASSC 112 Gallo v Dawson [1990] HCA 30 Habib v State of New South Wales [2014] NSWCATAP 70 Jackamarra v Krakouer (1998) 195 CLR 516 Jackson v Land and Housing Corporation [2014] NSWCATAP 22 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 Nanschild v Pratt [2011] NSWCA 85 Opera Australia Ltd v Carr [1999] NSWADTAP 6 Owners Corporation Strata Plan 64757 v MJA Group Pty Ltd [2011] NSWCA 236 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 The Australian Gas Light Company v Valuer-General Tomko v Palasty (No 2) (2007) 71 NSWLR 61 Texts Cited: None Category: Principal judgment Parties: Concourt Pty Ltd, Appellant in AP 15/10590, Respondent in AP 15/59781 Victoria Mary Kerr, Appellant in AP 15/59781, Respondent in AP 15/10590 Representation: Mr Allan of counsel instructed by Messrs Ziman & Ziman Mr Simpkins of counsel instructed by Messrs Bird & Bird solicitors File Number(s): AP 15/10590; AP 14/59781 Publication restriction: None Decision under appeal Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2014] NSWCATCD 256 Date of Decision: 13 November 2014 Before: G Meadows, Senior Member File Number(s): HB13/09795;HB13/31696 reasons for decision Introduction 1. Concourt Pty Ltd (the builder) was retained to conduct substantial building works for Victoria Mary Kerr (the owner) in relation to her premises at Tamarama in Sydney. Each brought proceedings below:- the builder claimed for outstanding payments for work done, including interest, the owner sought to be relieved from any obligation to pay those amounts and in turn sought compensation for alleged defective and incomplete works, as well as legal costs and expert fees. 2. In the result, by decision below dated 13 November 2014, the Tribunal found the owner owed the builder $44,6051.83, and the builder owed the owner $76,158.50, with the net result that the builder was to pay the owner $36,506.67. 3. Each party seeks to appeal from those adverse orders. Each was represented by counsel at the hearing below and on appeal. The notices of appeal refer only to questions of law and expressly do not seek leave to raise a question other than of law. There was no application to amend either notice. We thus limit our consideration to the grounds so identified, with one exception of patent factual error. 4. Any appeal by either party was required to be lodged within 28 days of receipt of the decision below, namely 28 days after 14 November 2014. The owner appealed in time, the builder did not. As we have decided not to extend time, it is convenient first to deal with the builder's application to have time extended. The builder's application for extension of time 1. The builder only lodged its appeal on 5 March 2015. That is significantly out of time. It needs an extension of time for its appeal to be considered. An Appeal Panel, which included the President, considered the relevant principles for the granting of extensions of time in Habib v State of New South Wales [2014] NSWCATAP 70 at [71]-[75], as follows: "71. Section 41 of the Act provides: (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired 72. The discretionary power to grant an extension of time under s 41 of the Act is unfettered but it must be exercised judicially and having regard, among other things, to s 36 of the Act and the need "to facilitate the just, quick and cheap resolution of the real issue in the proceedings". 73. The discretion to extend time is given for the sole purpose of enabling the Tribunal, in this case the Appeal Panel, to do justice between the parties. In order to determine whether the rules will work an injustice, it is appropriate to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time. It is also appropriate to consider the prospects of the appellant succeeding in any application for leave to appeal and on the appeal itself. In order to justify the Appeal Panel extending the time, there must be some material upon which the Appeal Panel can exercise its discretion. See Nanschild v Pratt [2011] NSWCA 85 at [38]; Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2] and the authorities referred to there; and also Opera Australia Ltd v Carr [1999] NSWADTAP 6 at [16] and Chand v Rail Corporation of New South Wales No 3 [2010] NSWADTAP 11 at [20]. 74. Time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings and to achieve finality in litigation. For these reasons, time limits should generally be strictly enforced unless the interests of justice require that an extension be granted. 75. As set out in Jackson v Land and Housing Corporation [2014] NSWCATAP 22 at [22], the relevant considerations in deciding whether to grant an extension of time in which to lodge a Notice of Appeal include: (1) The discretion can only be exercised in favour of an appellant upon proof that strict compliance with the rules will work an injustice upon the Appellant ­ Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2) The discretion is to be exercised in the light of the fact that the Respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision ­ Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success ­ Jackamarra at [7]; (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The Appellant's prospects of success, that is usually whether the appellant has a fairly arguable case; and (d) The extent of any prejudice suffered by the Respondent (to the appeal): - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the Appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable ­ Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] ­ [59]." 1. The length of delay in this case is considerable: nearly 3 months. At all times the builder was legally represented, so it must be taken to have known of the importance of compliance with deadlines. 2. As to the reasons for the delay, we have before us on the Appeal, an affidavit from Michael Chong, the solicitor with carriage of the matter, and Garrick Ziman, the principal of the firm. 3. In essence, Mr Chong says that: 1. His father passed away on the day of the decision below; 2. He suffers from chronic kidney disease requiring daily dialysis; and 3. He suffers from a further unidentified medical complaint; all of which led to a medical certificate being issued on 8 December 2014 stating that he would be unfit for work between 2 December 2014 and 19 January 2015. 1. There was also evidence that Mr Ziman: 1. Took over the matter early in December 2014 because of Mr Chong's illness; 2. Was away on holidays for most of January and; 3. Because of various ski-related injuries, could not return to full time work until mid-February 2015. 1. Although we accept the facts established by this evidence, we consider that it does not provide a sufficient explanation first, for the delay between 14 November 2014 and 2 December 2014, in relation to Mr Chong, and, second, from 2 December until the end of the legal term, for Mr Ziman. 2. Mr Allan of counsel, who appears for the builder on the appeal, had conducted the matter for the builder at first instance. There is no evidence showing he could not have been retained immediately upon receipt of the reasons to have considered the reasons and drafted the Notice of Appeal. Indeed, in circumstances where counsel appears at first instance and on appeal, this would be a normal, even a likely, course of action. 3. There has thus been no adequate explanation for the delay. 4. Further, there was no evidence that the appellant would suffer any particular injustice were time not to be extended. For these reasons, we would refuse an extension of time. 5. In addition, to the extent it is necessary to do so, we consider the grounds of appeal to be weak. That is, there is little merit to them. 6. We have noted above that there was no application to amend the Notice of Appeal, although we were told that the builder was abandoning the grounds in the filed Notice of Appeal relating to the 'Rear Sliding Doors', and under the heading 'Generally'. 7. The only asserted questions of law in the builder's Notice of Appeal are an asserted absence of reasons in relation to claims concerning 'the stairs', 'the flooring' and 'the skylight', which it was argued, showed the Tribunal below had not turned its mind to particular submissions made. 8. However, the builder faced difficulties in making good the argument on those grounds as it did not seek to tender at the hearing of the appeal any of the evidence below. Further, in relation to its claims that particular arguments were not considered, there was no transcript of the hearing below before us, despite the fact that it was expressly noted when pre-appeal directions were made on 17 February 2015 that any party seeking to rely on a sound recording, transcript or any other material at first instance would have to comply with the timetable for filing. That timetable required the builder to file and serve that material by a certain time, but the directions were not complied with and there was no satisfactory explanation as to the non-compliance. 9. Rather, we were informed for the first time at the hearing of the appeal, the builder's counsel had recently listened to the tape of the proceedings and proposed to refer to that tape if necessary, asking the Appeal Panel to play parts of the tape. The tender of the tapes was objected to by the owner's counsel. The proposal was unsatisfactory. It would have involved disadvantage to both the Appeal Panel and the respondent, and may well have required an adjournment. In addition, it could easily have been avoided by compliance with the Appeal Panel's directions. As noted before, there had been no satisfactory explanation for non-compliance. Accordingly, we rejected the tender of the recording at the hearing. 10. Without the transcript, the builder, in the absence of concessions from the owner that particular matters argued were not dealt with, failed in every instance in a factual sense to make good this necessary (but not sufficient) premise for its argument. 11. Further, on the material before us, the reasons appeared to meet the standard required by law, in particular s 62(3) of the Civil and Administrative Tribunal Act ('the Act'). We also apply what was what was said by the Court of Appeal in Amaca Pty Ltd v Tullipan [2014] NSWCA 269 at [14], namely: "It is not necessary to set out the general principles regarding review for inadequacy of reasoning, which were summarised in Resource Pacific at [42]-[57]. As noted by Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273, "it will ordinarily be sufficient if ... by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted." As counsel for the respondent noted, adopting the language of McHugh JA in Soulemezis at 281, "great care needs to be taken that dissatisfaction with the finding of fact does not mislead the Court into holding that the learned judge has failed to give his reasons for his finding." Finally, in Soulemezis at 282, McHugh JA stated: "What is decisive is that his Honour's judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough where no appeal lies against the finding of fact. Accordingly there was no failure to give reasons sufficient to constitute an error of law." 1. We consider the reasons of the Tribunal below meet that standard. 2. Thus, we decline to extend time in the builder's appeal, which must therefore be dismissed. The owner's appeal 1. We then turn to the owner's appeal. 2. It is now necessary to say a little more about the decision below. There was then an expert conclave preceding the hearing, which, as the decision below observed, resulted in receipt of an amended joint Scott Schedule signed by each party's expert which embodied "the agreements and the outstanding disputed issues" at paragraph 3. This is of some significance. 3. That left six outstanding issues for determination, as set out in paragraph 4 below, namely defective internal stairs, failure to install yellow tongue particle board, failure to top hang sliding doors, rebate for agreed removal of skylight, retention monies held by the owner and the amount of liquidated damages. The owner at the hearing of the appeal did not press its challenge to the sliding doors or liquidated damages issues. Practical completion 1. The owner complains that the Tribunal erred in finding the date of practical completion was 18 February 2009 on the basis that on that date, an interim occupation certificate was issued. It points to paragraph 57 of the decision below, which states: "I find that practical completion was reached by the date the occupation certificate was provided. The fact that there were minor incomplete items and perhaps major items of defective works, does not mean that practical completion was not reached. I find that the premises were able to be used for their purpose despite the remaining defective items. The ongoing negotiations between the parties up to June 2012 were in relation to either attempts to have defective works rectified, or minor works completed." 1. The owner complains that this finding contained in paragraph 57 necessarily was "plainly wrong", having regard to the definition of "practical completion" in the contract, which was tendered on the appeal. "Practical completion" was defined to be "that stage in the carrying out and completion of WUC (works under contract) when the works are complete except for minor defects." We consider this issue further below. Rectification of tiles 1. The Tribunal also erred, it is said, by not making a finding as set out in the agreed conclave of the cost of rectifying tiles being $2,376. Rather, as set out in paragraph 7 of its decision, the Tribunal said this: "there is one further issue, being rectification of tiles in the en suite bathroom. The joint Scott Schedule suggests that liability, rectification and cost have been agreed although the builder's counterpart to the Scott Schedule suggests that liability is still to be determined. In any case, the owner now alleges she has spent the sum of $1,155 for this rectification work, although the sum agreed at the conclave was $2,376." It does appear that the Tribunal erred in not applying the amount set out in the Scott Schedule. The question is whether this was a question of fact or law, and what follows, as we discuss below. Retention Monies 1. Finally, there is a complaint in relation to the retention monies and interest. This comes under the heading 'the builder's claim' which was for $34,483 in "alleged outstanding payment" and $10,000 estimated interest on that amount over four years. The Tribunal wrote: "67 In oral submissions at the end of the hearing, the builder submitted that his claim for outstanding payment was $24,483 plus interest. The owner submitted the amount was $23,483. 68 The most compelling evidence proving the amount outstanding in my opinion is the variation letter. Although I have found that document not to be in fact a variation of the contract, nevertheless it was signed by the builder, which satisfies me that as at 19 June 2012, the builder did agree that the outstanding amount of $27,483. It is undisputed that the owner paid an amount of $4,000 to the builder pursuant to clause 6 of the variation letter, leaving the amount of $23,483 as contended by the owner. I find that is the outstanding amount owed to the builder. 69 In relation to interest, the owner concedes in the defence to the builder's claim that in the event it is found that the retention monies were unreasonably withheld, interest would be payable. The initial position of the owner is that no interest is payable on any outstanding payment because the works remain defective and incomplete. As I have found above, the works reached practical completion on 18 February 2009. However, the owner asserts in the defence that interest would only accrue from 30 August 2012, as that is the date the builder asserts the works were completed. The evidence is said to be contained in the builder's letter dated 16 October 2012. 70 I do not agree with the owner's submissions. In the letter of 16 October 2012, the builder refers to "maintenance works" being completed, not to the date of practical completion. I find that the claim for interest properly accrues from 18 February 2009." Consideration Ground one - practical completion 1. The owner argued before the Tribunal that practical completion should be determined based on a 2012 "Variation" to the contract as agreed between the parties. The "variation letter" set out a series of defects that the builder allegedly refused to repair. The owner sought an order from the Tribunal that she was entitled to retain a percentage of the contract price until the builder had performed all works as set out in the variation letter: only after the builder had corrected the defects in the variation letter should the premises be deemed complete. 2. The argument raised on appeal was not raised below. Now, the homeowner claims that the variation letter was of no consequence and that the Tribunal made an error of law when it failed to determine practical completion by reference to the contract. 3. We consider that there was no relevant difference between "practical completion" and "practical completion under the contract". Practical completion is a finding of fact and degree and a matter for evidence. The contract at cl 1 deems the work "practically complete" when the "works are complete except for minor defects". The Tribunal was therefore obliged, under the contract, to determine whether minor defects existed. This is a question of fact not law. It does not involve ascertaining the meaning of the terms of the contract, which would be a question of law: see Fitzallen v Roseberry-Toorak Football Club [2003] TASSC 112. 4. In Owners Corporation Strata Plan 64757 v MJA Group Pty Ltd [2011] NSWCA 236, the Court of Appeal accepted that determining the completion of work involves findings of fact depending upon the particular circumstances of the case at hand. That principle does not change in cases where a written contract defines "completion". Generally, it means the point where all building work is complete, or all but completed, in accordance with the contract, and the premises are reasonably fit for occupation. This was precisely the Tribunal's finding. For these reasons, we do not consider that the Tribunal misdirected itself or failed to consider practical completion under the contract. There is no error of law. 5. Further, this was not an issue raised in the appellant's case below nor in its initial submissions here, and the respondent was not previously called upon to answer it. The appellant ran its case below on the issue of completion based on the variation letter. In those circumstances, where the respondent may have called different evidence or conducted its case differently, the appellant should be held to the way it conducted its case below and should not be permitted to raise the issue on appeal, see Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1. Ground 2 - the retention moneys 1. We are not persuaded the Tribunal erred in law in finding that the retention moneys were wrongly calculated. It is not contentious that the starting point for calculation of retention funds must be based on a finding as to when the works were complete. The homeowner's contention is that the Tribunal erred at law when it arrived at a finding that the works were complete, based on the issue of an interim certificate thus: "to adopt the date that an interim certificate was issued for the property was plainly wrong. By dint of s 109H(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW), an interim Occupation Certificate is, by its very definition, evidence that the works were incomplete". 2. This does not address the real issue, as defined by the contract, of what constitutes a "minor defect" for the purpose of determining practical completion. 3. The issue of an interim occupation certificate does not preclude a finding that the defects set out in any interim certificate are "minor" in nature, but otherwise permitting use of the premises for their ordinary purposes. For the reasons set out above, the ground of appeal must fail. Ground three – rectification of tiles 1. It was not contested on appeal that the experts agreed at the conclave that that appropriate cost of rectification for defective tiles was $2376. The owner contends this amount should have been awarded. The builder does not resile from the agreed conclave finding, but contends that the Tribunal below may have inferred that the homeowner, having incurred $1155 for cleaning and resealing, was not entitled to the cost of rectification. We do not agree that this inference can be drawn from the findings at paras 7 and 31 of the Tribunal's reasons, which state: '[7] There is one further issue, being rectification of tiles in the ensuite bathroom. The joint Scott Schedule suggests that liability, rectification and cost has been agreed although the builder's counterpart to the Scott Schedule suggests that liability is still to be determined. In any case, the owner now alleges that she has spent the sum of $1,155.00 for this rectification work, although the sum agreed at the conclave had been $2,376.00.' … [31] Before going on to consider other specific items, it is necessary to address the abovementioned differences between the parties' versions of the agreements reached at the expert conclave. These are set out in the attached summary of the conclave joint Scott Schedule. I refer in particular to items 6.1(a), (b) and (c); 6.2 and 6.3(a), (b) and (c). Member Topolinsky's notes are very clear and not ambiguous. The owner agrees with the Member's notes (of course, as would be expected). I find that these items were all agreed at the conclave, in relation to liability ("responsibility"), method of rectification and cost of rectification and I allow those amounts. There is a necessary variation to the allowance for the ensuite tiles as it is now known what they actually cost to be rectified, being an amount less than that agreed at the conclave. For that item I allow $1,155.00.' 1. The builder agrees that the evidence showed that an amount of $1155 was spent on cleaning and resealing only. It appears that there was no evidence before the Tribunal that could have supported its finding that the actual cost of rectification was only $1155. We cannot agree with the respondent that there was an evidentiary basis for the finding that the rectification, rather than the cleaning, costs should be awarded. That is, there was no evidence to support that conclusion. It is an error of law if there is no evidence to support a finding of fact: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-6; The Australian Gas Light Company v Valuer-General [1940] NSWStRp 9; (1940) 40 SR (NSW) 126 at 138; John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [20]. We would allow the appeal on that ground. Even if we are wrong about it being a question of law, we would grant leave to appeal on this discrete issue because it is such an obvious error and the interests of justice favour that course. 2. Accordingly, the appeal should be allowed so as to vary the amount payable by setting aside the finding in paragraph 31 below of $1155 and substituting it with the figure of $2376. 3. The parties are to bring in consent orders giving effect to these findings. Orders 1. In relation to Appeal 14/59781, the Tribunal orders that: 1. The application for leave to appeal out of time is dismissed. 2. The appeal is otherwise dismissed. 1. In relation to Appeal 15/10590, the Tribunal orders that: 1. The appeal is allowed in part. 2. The appellant is to file and serve orders giving effect to these reasons within 7 days together with no more than 3 pages of explanatory submissions on this and costs. 3. The respondent is within a further 7 days, to file and serve any alternative orders together with no more than 3 pages of submissions in response as to relief and costs. 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: 09 June 2015