Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shaw Plumbing Pty Ltd v Sparksman [2015] NSWCATAP 167 Hearing dates: 31 July 2015 Date of orders: 12 August 2015 Decision date: 12 August 2015 Jurisdiction: Appeal Panel Before: A P Coleman SC, Senior Member D Goldstein, Senior Member Decision: 1. Leave to appeal refused 2. Appeal Dismissed Catchwords: APPEAL: leave – no errors of law; new evidence- no reasonable explanation as to non-availability at hearing Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: Shaw Plumbing Pty Ltd – Appellant Marie Frances Sparksman - Respondent Representation: Counsel: n/a Solicitors: n/a File Number(s): AP 15/12352 Publication restriction: Nil Decision under appeal Court or tribunal: NCAT Jurisdiction: Consumer & Commercial Division Date of Decision: 27 February 2015 Before: J A Ringrose, Member File Number(s): HB 14/04393 REASONS FOR DECISION Overview 1. This is an application for leave to appeal and an appeal from a decision of the Consumer & Commercial Division of the Tribunal in which the Appellant, a builder, was ordered to pay the sum of $ 26,678.50 to the Respondent. The order for payment arose from building works that were preformed by the Appellant at the Respondent's home which had been developed and built by the Appellant. 2. The Appellant seeks leave to appeal from the decision below on the basis that the decision was not fair and equitable. It also seeks to reply on new expert evidence. The Appellant originally also sought to argue that the decision was against the weight of the evidence but abandoned that ground at the hearing of the appeal. It sought to argue, however, that the Tribunal erred in rejecting certain evidence that it wanted to rely on at the hearing. 3. For the reasons that follow we are of the opinion that the Appellant does not succeed on any of its arguments. We refuse the Appellant leave to rely on the new evidence. We refuse leave to appeal and dismiss the appeal. The hearing below and reasons of the Tribunal 1. The matter had a relatively long history prior to the final hearing before the Tribunal on 27 February 2015. This included, relevantly, adjournments to allow the parties' experts to meet at the site to attempt to develop an agreed scope of works. That was done and a joint Scott Schedule was prepared and signed by Mr Ransley (the Respondent's expert) and Mr Henderson (the Appellant's expert) detailing the rectification works required. 2. Following the preparation of the joint Scott Schedule, the matter was further adjourned to allow rectification work, in accordance with the joint Scott Schedule, to be undertaken. Ultimately, however, those works were not properly undertaken, or undertaken at all, by the Appellant. There were subsequent adjournments to allow for the matter to be made ready for hearing and because the director of the Appellant, Mr Shaw, was suffering from cancer. 3. At the hearing below the Respondent relied upon, inter alia, an expert report from Mr Ransley and the signed record of the joint experts conclave as well as additional evidence in support of her claim. This included a quote from Ventech Fitouts dated 18 September 2014 to carry out the rectification works described in the joint Scott Schedule. 4. Despite procedural directions requiring the service of evidence at an earlier time, the Appellant did not file evidence until 2 February 2015. Further, it did not provide that evidence to the Respondent until the day of the hearing on 27 February. It sought to rely on evidence including a letter from Mr Shaw dated 2 February 2015 whereby he sought to make comments on the joint Scott Schedule. Mr Shaw claimed to have personally investigated the issues raised and sought to impugn the findings of the experts (including Mr Henderson, the Appellant's expert) as, so he said, their findings were based on assumptions which were not correct. He sought to suggest that the items agreed between the experts as requiring rectification were wrong or uneccessary. He also sought to rely on additional photos and a video. The video was rejected as it did not comply with the earlier directions made by the Tribunal. 5. The Tribunal rejected the attempts by Mr Shaw to give expert evidence by way of opinion on the matters contained in the joint Scott Schedule. It was held that such evidence did not comply with the requirements of an expert report in accordance with the directions earlier made by the Tribunal. The Appellant now asserts that the Tribunal erred in rejecting this evidence. As we explain below, we reject that assertion. 6. The Tribunal found that the rectification work which had been agreed would be carried out by the Appellant had not been completed in whole or in part. It held that the appropriate course was to consider the cost of the rectification work required based on the agreed Scott Schedule. It held that the Respondent was entitled to be compensated for the costs of that rectification work. It found that in so far as Mr Shaw contended that the joint Scott Schedule and the opinions of the experts were based on false assumptions, there was no expert evidence to support such contentions. 7. The Tribunal considered the evidence before it and found that the Respondent was entitled to $21,629 for the cost of the rectification works. She was also entitled to the costs of her expert witness in the sum of $5,049.50. Other amounts claimed by her were disallowed. The Notice of Appeal 1. By Notice of Appeal filed 11 March 2015, the Appellant seeks leave to appeal from the decision of the Tribunal. The bases by which it is said in the Notice of Appeal that leave should be granted are that: 1. The decision was not fair and equitable; 2. The decision was against the weight of the evidence; and 3. There is evidence now available that was not reasonably available at the time of the hearing. 1. As was noted above, at the hearing of the appeal, the Appellant abandoned the attack on the Tribunal's reasons on the basis that it was against the weight of the evidence. The Appellant maintained, in the alternative, that the Tribunal erred in excluding the additional evidence it sought to lead at the hearing criticising the joint Scott Schedule. 2. The grounds of appeal as set out in the Notice of Appeal are effectively attacks on and criticisms of individual items in the joint Scott Schedule. The orders sought by the Appellant are that the Tribunal's orders be overturned and that some items of the Scott Schedule be allowed with an estimate of cost of $1200. The Hearing of the Appeal 1. At the hearing before the Appeal Panel, the Appellant appeared by its director, Mr Shaw. Mr Henderson, the Appellant's expert, sat with Mr Shaw and sometimes consulted with him but he did have leave to, and did not, make any submissions. The Respondent appeared in person. 2. The Appellant relied on the material attached to the Notice of Appeal and to a letter of submission filed 29 May 2015 together with photographs. It also sought to tender a report of Mr Henderson dated 7 March 2015 by way of new evidence. We will deal with that issue below. Mr Shaw made oral submissions. 3. The Respondent relied on the material in and attached to the Reply to Appeal including photos, emails between her and Mr Shaw and between the experts and the Scott Schedule. The respondent made oral submissions. Applicable Principles 1. The Appellant accepts that it requires leave to appeal as it does not in its Notice of Appeal allege that the Tribunal made errors of law (see cl 12 of Schedule 4 to the Civil and Administrative Tribunal Act (2013)). We have considered the matters raised by the Appellant in the Notice of Appeal and in its submissions and, except in respect to the submission that the Tribunal erred in rejecting the evidence it sought to lead at the hearing, there are no identifiable errors of law which are or could be raised. 2. The principles applicable by the Appeal Panel in considering applications for leave to appeal are well settled. They are set out in Collins v Urban [2014] NSWCATAP 17 at [65]-[84]. We will not repeat them here but have had regard to them in reaching our decision. We bear in mind that the Appellant does not need to satisfy us that it has actually suffered a substantial miscarriage of justice, rather, that it may have suffered a substantial miscarriage of justice. An appellant will have demonstrated this if, in respect to any of the circumstances in cl 12, where there is a significant possibility or a chance that was fairly open that a different or more favourable result would have been achieved for the appellant if the relevant circumstance had not occurred. Discussion and Disposition 1. We will deal with each ground for leave individually. The decision was not fair and equitable 1. If there has been a denial of procedural fairness, the decision can be said to have been not fair and equitable Collins v Urban, supra, at [77]. In this case, the Appellant referred to the fact that he had been very ill with cancer during the time from just prior to the application to the Tribunal being filed by the Respondent and has had several operations and intensive treatment by chemotherapy. It was submitted that due to those circumstances, he was not in a position to attend site meetings or deal with emails and phone calls. Additionally, it was submitted that because of his illness, there had been no proper investigations of the issues requiring rectification and only assumptions made by the experts. It was said that is was only when Mr Shaw gained access to the property and removed roof tiles that it was evident that the expert witnesses were incorrect. 2. It can be seen that, save for the challenge to the rejection of the evidence sought to be relied upon at the hearing (which we deal with below), the Appellant does not allege that there was any procedural unfairness in the way that the Tribunal conducted the hearing. We do not think on the material before is that if there was any such criticism that it could be sustained. The Tribunal had given the Appellant every opportunity to prepare itself for the hearing including adjourning on one occasion because of Mr Shaw's illness. 3. Mr Shaw may well have been ill for much of the time that the material necessary for the preparation of the hearing was being undertaken. However, the Appellant had engaged an expert who had attended the premises and inspected the works and reached a joint conclusion with Mr Ransley as to what needed to be done by way of rectification. Additionally, it had employees who had attended the site. It is not clear, in these circumstances, why the Appellant could not have taken any other necessary steps to prepare for the hearing, including having Mr Henderson re-attend the site and prepare an additional report if it was thought this was necessary. 4. Further, there was no application for an adjournment of the final hearing based upon Mr Shaw's ill health and any effect that had, or may have had, on the Appellant's preparation. 5. In our opinion, the Appellant has not succeeded in establishing that the hearing was not fair and equitable. Rejection of Mr Shaw's opinion evidence 1. In respect to the challenge by the Appellant to the rejection by the Tribunal of the evidence sought to be led, we note that the Tribunal so held because the evidence sought to be led was opinion evidence. There had been directions for the service of expert reports. The Appellant did not comply with those directions. The evidence it sought to rely on (by Mr Shaw who was the managing director of the Appellant) was not in the form required by the directions as an expert report. There was no report by an expert opining that the views of Mr Shaw ought be accepted. 2. We do not accept the Appellant's submissions that the Tribunal erred in rejecting this evidence. As we have observed, and as is made clear in the reasons of the Tribunal, there had been numerous adjournments to the proceedings and directions made with respect to the service of evidence, including expert reports. The Appellant did not comply. It was said this was because Mr Shaw had been ill with cancer, however, the Appellant had been given extra time to comply because of this. Further, the Appellant did not tender any medical evidence explaining why additional time may be needed, nor did the Appellant seek an adjournment of the hearing to obtain further expert evidence. 3. In any event, whist the Tribunal is not bound by the rules of evidence, we are not persuaded that it erred in rejecting Mr Shaw's opinion evidence criticising the joint Scott Schedule. After all, Mr Shaw was effectively the mind of the Appellant and was not, therefore, independent. Further, and more significantly, there was in evidence the joint Scott Schedule created by the experts for both parties, including Mr Henderson, the expert for the Appellant. That joint Scott Schedule had been prepared after the experts had visited the Respondent's premises. At the hearing, there was no indication that the Appellant's expert resiled from its contents. The Tribunal was entitled, in these circumstances to reject the opinion evidence of Mr Shaw and his criticisms of the joint Scott Schedule. We reject this ground. New Evidence on Appeal 1. At the appeal, the Appellant sought to rely on a new report dated 7 March 2015 from Mr Henderson of Henderson Civil Engineering Pty Ltd. That report apparently arose from the visit by Mr Shaw to the premises on the 1st or 2nd of February 2015 whereupon he removed roof tiles, made other investigations he said he had been unable to do before and took photos. As a result, he said that it became clear to him that the previous reports by the experts and their conclusions in the joint Scott Schedule were erroneous as they were based on wrong assumptions. The new report sought to deal with those incorrect assumptions and significantly change Mr Henderson's view to that expressed in the joint Scott Schedule of what rectification works needed to be undertaken. 2. In order to be able to rely on the new report, the Appellant must show that it was evidence that was not reasonably available to it at the time the proceedings under appeal were heard. It must then show that there is a significant possibility that it may have suffered a substantial miscarriage of justice, in that a more favourable result may have been achieved, if the evidence had been available: see Collins v Urban, supra at [72]-[75] and the authorities there cited. 3. The difficulty for the Appellant in this case, in our opinion, is that it cannot overcome the first hurdle. Namely, it cannot establish that the material contained in the new report was not reasonably available at the time of the hearing. In our view it plainly was. 4. Even though Mr Shaw had been sick for some time, there is no proper reason to explain why the opinions now sought to be advanced by Mr Henderson in the new report could not have been advanced by him before. He had attended the site and conducted a conclave with Mr Ransley. If it was thought necessary to remove roof tiles, or do other things to investigate the alleged defects, it was clearly open to Mr Henderson, as the Appellant's expert, to do so at the time. He did not. Instead, he agreed with the defects identified in the joint Scott Schedule. 5. Further, there is no reasonable explanation as to why on forming the opinion on his visit to the site on the 1st or 2nd of February that the assumptions of the experts were wrong, Mr Shaw did not take steps to provide this information to Mr Henderson so that he could provide a supplementary or revised expert report. There was over three weeks between forming this opinion and the hearing on 27 February. Yet, rather than make contact with Mr Henderson, Mr Shaw prepared his own letter seeking to deal with this matter. 6. At the appeal hearing Mr Shaw said the reason he did not seek to provide this information to Mr Henderson was because he was trying to deal with his illness. Whilst it can be accepted that Mr Shaw has had a very difficult time in dealing with his illness, we consider that in all of the circumstances, and having regards to the interests of all of the parties, there is no reasonable explanation as to why following his site visit and before the hearing Mr Shaw could not have taken the simple step of contacting Mr Henderson to inform him of the result of his investigations and his conclusion that the experts had proceeded on false assumptions. After all, he did this immediately after the Tribunal's decision which resulted in the new report from Mr Henderson dated 7 March. We conclude, therefore, the material now sought to be relied upon could reasonably have been available at the time of the hearing and we reject it as material that the Appellant can rely on in the appeal. Conclusion and Orders 1. For the above reasons we are of the opinion that the Appellant has failed to establish any of the bases put forward as to why leave to appeal ought be granted. It has not otherwise been established that the Tribunal erred in rejecting Mr Shaw's opinion evidence at the hearing. 2. The orders we make are: 1. Leave to appeal refused. 2. The appeal is 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: 12 August 2015