Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Goldstone v Fountain [2015] NSWCATAP 258 Hearing dates: 17 September 2015 Date of orders: 02 December 2015 Decision date: 02 December 2015 Jurisdiction: Appeal Panel Before: P Callaghan SC, Principal Member R Titterton, Senior Member Decision: 1. The time for filing the notice of appeal is extended to 5 September 2014. 2. The application for leave to appeal is refused. 3. The appeal is otherwise dismissed. 4. The order appealed from is confirmed. 5. There is no order as to costs. Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – appeal – question of law – appeal refused – no question of principle CIVIL AND ADMINISTRATIVE TRIBUNAL – appeal – question of law – leave to appeal appeal refused – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 Legal Profession Act 2004 Cases Cited: Baker v David [2015 NSWCA 235 Collins v Urban [2014] NSWCATAP 17 CPD Holdings Pty Ltd t/as The Bathroom Exchange [2015] NSWCATAP 21 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Graham Goldstone (Appellant) Gail Fountain (Respondent) Representation: The Appellant in person. The respondent was represented by Mr K J Graham of Grahams Solicitors, Lismore File Number(s): AP 14/47000 Decision under appeal Court or tribunal: Consumer Trader and Tenancy Tribunal Jurisdiction: Home Building Division Date of Decision: 01 August 2014 Before: D Goldstein, Senior Member File Number(s): HB 14/02576 REASONS FOR DECISION 1. This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal of 1 August 2014. At the hearing below Mr K J Graham appeared for the applicant homeowner, and the respondent builder (the present appellant) represented himself. In its decision, the Tribunal ordered the builder to pay the homeowner the sum of $102,346.20 within 14 days. For the reasons set out below, the appeal is dismissed. Background 1. The disputes arose out of a building contract entered into between the parties in April 2011, which was in respect of a property at Byron Bay, and which the applicant homeowner terminated in March 2014. The homeowner made a claim to the Tribunal which included compensation for the overpayment for works carried out ($44,207.00), the cost of rectification of defective work ($22,113.00) the cost of completion of the works ($30,732.00) and liquidated damages of $30,000.00 in total approximately $127,000.00. 2. A hearing was held as a special fixture in Lismore on 19 June 2014, over about half of a day. The Tribunal published it reasons for decision on 1 August 2014. The evidence included the applicant's witness statement and an expert report of Mr David Oke dated 8 January 2014. The appellant's evidence included his statement and various other documents, but the appellant's evidence did not include an independent expert's report. There was a Scott Schedule to which the appellant had responded. Oral evidence was taken. Decision 1. The reasons published by the Tribunal are lengthy and comprehensive. 2. In relation to the overpayment claim, the Tribunal found that the applicant had overpaid the appellant $44,207.00, made up as follows: Paid $544,070.84 Less Contract price $495,000.00 Homeowners warranty insurance $3,152.00 Variations $11,711.75 $509,863.75 $44,207.09 The homeowner's expert had expressed the view that the overpayment had in fact been $98,972.00 but the Tribunal did not accept that part of his evidence. 1. The Tribunal scrutinised the evidence concerning the homeowner's defective work claim and reduced it to $3,995.00. 2. The reasons commented on the evidence concerning the cost of completion of works of $30,732.40, including material from the expert, the Department of Fair Trading and the appellant. 3. The Tribunal noted that the contract period was 39 weeks after commencement, which to be within 20 working days after the appellant received all necessary building permits and planning approvals, and that there was a provision in the contract for liquidated damages of $60.00 per working day if the building works did not reach practical completion by the end of the contract period. The Tribunal also found that the builder had not applied for any extensions of time in respect of the contract period. After consideration, the Tribunal accepted a calculation made by the homeowner's solicitor and awarded liquidated damages in the sum of $29,280.00. 4. The Tribunal ordered that the respondent (the present appellant) must pay the applicant $102,346.20 within 14 days of the date of the decision. That amount was made up this: Overpayment $44,207.00 Rectification costs $3,995.00 Completion costs $24,864.00 Liquidated damages $29,280.00 $102,346.20 1. The Tribunal also directed a timetable for submissions in relation to any application for costs. The applicant sought costs and lodged submissions in support of that application. No submissions were lodged by the respondent (the appellant). By decision, with reasons, published on 22 October 2014, the Tribunal ordered that the respondent must pay the applicant's costs of the proceedings, such costs, if not agreed, to be assessed on the basis set out in Div II of Part 3.2 of the Legal Profession Act 2004. Appeal 1. The appellant lodged a Notice of Appeal in Tamworth on 5 September 2014. The Notice of Appeal states at the outset that the appellant received the appealed decision on 6 August 2014. With reference to an attachment it appears to seek to appeal and to apply for leave to appeal. A stay of orders is also sought. The appellant objects to the appeal being dealt with on the papers. 2. That attachment to the notice of Appeal challenges the appealed decision in respect of liquidated damages, overpayment and completion costs. It does not contest the rectification costs and states that the Appeal should order the respondent to pay the applicant $3,995.20 for that item, with no order as to costs. 3. There was also attached to the Notice of Appeal a copy of a statement headed "Evidence reply to Liquidated Damages", a copy of which apparently had been lodged by the appellant in the subject proceedings. Such a document was referred to thus in the appealed decision at [81]: The builder by his solicitor has submitted what was described as 'Evidence reply to Liquidated Damages'. The owner's solicitor objected to this document as going beyond responding to the owner's submissions on liquidated damages. I find that paragraphs 8 and onwards do not relate to liquidated damages issues and seek to introduce new evidence on submission. I reject those paragraphs. Appeal 1. In the attachment "11B Grounds of Appeal" the appellant complained that the Tribunal failed to consider his evidence in three ways. The first was the Tribunal's failure to consider in relation to liquidated damages, evidence of acceptance of delays due to variations and inclement weather. The second was the failure of the Tribunal to consider his evidence in relation to alleged overpayment. The third was that the Tribunal failed to consider his evidence that the amounts alleged to be attributable to completion of the works were in in fact not part of the original contract, but were extra works required by the respondent that fell outside the scope of the contract. 2. In a Reply to Appeal lodged by her solicitor, the respondent among, other things, stated that the grounds of appeal do not raise any error of law, and that the appellant was seeking a rehearing of his original claim. She also submitted that the Notice of the Appeal has been filed outside the statutory period. In the event that the appeal be dismissed, she sought an order that the appellant pay her costs. 3. By way of written submissions the appellant lodged a short statement by himself which concludes: Please read my statement so I can show the cost against me are not accurate and I can show in detail that I have only tried to benefit the project by creating a dwelling that the owner can enjoy the comfort of the design changes that I have made. Yes changes do cost but I believe the cost would have been greater if the owner had not paid for material and labour direct. Some cost are shown in both costing and over charged, I have tried to point this out. 1. There are a number of attachments to the statement including several pages headed "Appeal Evidence to Liquidated Damages", and what appear to be shorter statements dealing with overpayment, costs of rectification work, cost of completion works and liquidated damages, together with a miscellany of copy documents, principally plans and drawings. 2. At the hearing of the appeal, both parties participated by telephone. The appellant took part in person and indicated that he did wish to have legal representation but he had had some legal assistance prior to the hearing in Lismore and in relation to preparation of his Notice of Appeal. Mr Graham represented the respondent. 3. Appeals from decisions of the Consumer and Commercial Division may be brought under s 80 of the Civil and Administrative Tribunal Act 2013 (the Act). That section states that an appeal may be made as of right on any question of law, or with leave of the appeal panel on any other grounds: s 80(2)(b)). 4. The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 considered the requirements for establishing an "error of law" giving rise to an appeal as of right and noted at [11] that, in circumstances where appellants are not legally represented, it is apposite to approach the issue by looking at the grounds of appeal generally. 5. In Prendergast the Appeal panel considered the requirements for establishing an error of law giving rise to an appeal as of right. Without expressing exhaustively possible questions of law, the Appeal Panel in Prendergast referred at [13] to the following as constituting errors of law: 1. Whether there has been a failure to provide proper reasons. 2. Whether the Tribunal identified the wrong issue or asked the wrong question. 3. Whether a wrong principle of law has been applied. 4. Whether there was a failure to afford procedural fairness. 5. Whether the Tribunal failed to take into account a relevant (mandatory) consideration. 6. Whether the Tribunal took into account an irrelevant consideration. 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision was so unreasonable that no reasonable decision-maker would have made it. 1. The appellant claims that the Tribunal failed to give consideration to his evidence in three various ways, as we have outlined in [14] above. During the hearing we discussed with the appellant the attention which the Tribunal gave to each of these matters, and noted the particular findings of fact made by the Tribunal in relation to each issue, as summarized above at [5] and [8]. We asked the appellant how he could establish his submissions that the Tribunal failed to consider his evidence when it seemed clear that each of these matters had been debated before the Tribunal. We discerned no persuasive response to this enquiry. 2. We bear in mind that it is a paramount judicial duty to consider a party's case and to address any significant or substantial issues, as was recently discussed by Meagher JA in Baker v David [2015] NSWCA 235 at [23]. We are satisfied that the each of the three issues referred to by the appellant did receive adequate attention from the Tribunal. We see no questions of law arising from the appellant's complaints. 3. Schedule 4, cl 12 of the Act provides that an Appeal Panel may grant leave only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence , or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In Collins v Urban [2014] NSWCATAP 17 the meaning of "substantial miscarriage of justice" was summarized at [71] and [79] as follows: [71]. . . [I]t can be seen that the concept of a substantial miscarriage of justice refers to a failure in the way a matter was conducted or decided which deprived the appellant of a chance that was fairly open of achieving a better outcome than occurred. . . . [79] In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result . . . it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred. 1. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 an Appeal Panel of the Tribunal conducted a review of the relevant cases at [65]-[79] and concluded at [84]: The general principles derived from these cases can be summarised as follows: (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 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. 1. As was explained in Pholi v Wearne [2014] NSWCATAP 78 at [32]: Even if the appellant establishes that [they] may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act (see Collins v Urban, supra at [80]-[84]). [The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result. 1. In the attachment to his Notice of Appeal the appellant states: The NCAT Appeal Panel should grant leave to appeal as the decision of the member and reasons for decision are not based on a proper consideration of the evidence in that the member has failed to take into account evidence of various agreements with the applicant/owner in relation to agreement to extend the time for the building works and to vary the scope of the works of the plants and contract variations. 1. We discussed the appellant's documents with him and heard his oral submissions at the hearing of the appeal. The appellant suggested a number of matters to found a submission that he had suffered a substantial miscarriage of justice. These included not having access to a witness statement, and not having access to other papers during the hearing, misunderstanding the nature of the hearing itself. Mr Graham seriously contested these claims. The appellant indicated to us that he thought, for some reason, that there was to be fresh hearing of the matter before the Appeal Panel. 2. Mr Graham explained that the matter had been set down for as a special fixture, and the hearing took approximately half a day, also that the appellant cross-examined the respondent, and her expert, and otherwise fully participated in the hearing, such that there was no unfairness to the appellant in the conduct of the hearing. He also noted that both parties had filed submissions after the conclusion of the hearing. 3. In the circumstances, we are not persuaded that the decision of the Tribunal under appeal was not fair and equitable, or against the weight of evidence. Nor do we have any reason to consider that significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). We do not consider that the appellant may have suffered a substantial miscarriage of justice. 4. In the circumstances, the application for leave to appeal should be refused, and the appeal otherwise dismissed. 5. We add that the Notice of Appeal was filed outside the 28 days from the day on which the appellant was notified of the decision (Civil and Administrative Tribunal Rules 2014, r 25(4)(c)) and, as we have said above, the respondent objects on that account. We calculate that this period was exceeded by less than a week and we are of the view that justice requires that we grant an extension of time to excuse that non-compliance. Costs 1. We noted above that the respondent sought an order that, in the event that the appeal was dismissed, that the appellant pay her costs. 2. The principles governing costs, which relate to an internal appeal, are set out in s 60 of the Act. In summary, the party seeking costs must establish that there are "special circumstances" warranting an award of costs. This provision has recently been considered by the Appeal Panel in CPD Holdings Pty Ltd t/as The Bathroom Exchange [2015] NSWCATAP 21. The Appeal Panel noted at [32] that the authorities are consistent in stating that "special circumstances" are circumstances are out of the ordinary; they do not have to be extraordinary or exceptional circumstances. The fact that the appellant has been totally unsuccessful in his appeal despite putting up a lot of documents to support it do not take the conduct of the appeal out of the ordinary. No order for costs of the appeal is warranted. 3. We note that Notice of Appeal does not challenge the costs decision, and actually pre-dated it. In any event, the costs decision seems to us to have appropriately dealt with the relevant legislative provisions and principles. Orders 1. The Appeal Panel makes the following orders: 1. The time for filing the notice of appeal is extended to 5 September 2015. 2. The application for leave to appeal is refused. 3. The appeal is otherwise dismissed. 4. The order appealed from is confirmed. 5. There is no order as to 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: 02 December 2015