Civil and Administrative Tribunal New South Wales Medium Neutral Citation: So v CSR Building Products Ltd [2015] NSWCATAP 285 Hearing dates: 15 September 2015 Date of orders: 24 December 2015 Decision date: 24 December 2015 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President S Thode, Senior Member Decision: (1) Appeal dismissed; (2) Appellant to pay the respondent's costs of the appeal as agreed, or as assessed, but such costs are not to exceed $5,000.00. Catchwords: Consent orders - Appeal costs - Section 60 Legislation Cited: Home Building Act 1989 Civil and Administrative Tribunal Act NSW 2013 Cases Cited: Alexandre Alexandrovic Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557 Texts Cited: Nil Category: Principal judgment Parties: Kai Wing So (appellant) CSR Building Products Ltd (respondent) Representation: Counsel: Mr Bors (Respondent) Solicitors: Colin Biggers and Paisley (Respondent) File Number(s): AP 15/42894 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Citation: Not applicable Date of Decision: 09 July 2015 Before: P Briggs, General Member File Number(s): HB 15/17105 reasons for decision Introduction 1. This is an appeal filed on 15 July 2015 from a decision of the Tribunal in the Consumer and Commercial Division delivered on 9 July 2015. 2. The decision of 9 July 2015 resulted in the dismissal of the appellant's application. The Tribunal's decision was, in summarised form, to this effect: 1. CSR (the respondent to this appeal and the respondent in the Consumer and Commercial Division application) and a company known as Fibopo Pty Ltd (Fibopo) were parties to a contact. The contract did not comply with s 7 of the Home Building Act 1989 (the HBA). 2. The contract was partly oral and partly in writing. The written part was contained in a quote issued by CSR. 3. CSR was a subcontractor to Fibopo and was not required to provide homeowners warranty insurance (HOW insurance) under the HBA. 1. The decision of 9 July 2015 arose out of an application lodged by the appellant in which the appellant sought the provision of HOW insurance from the respondent. The effect of the decision was that the respondent was not obliged to provide such insurance to the appellant. The appellant appeals that decision. Background 1. Unfortunately, the dispute between the parties has had a long and complicated background and it is necessary to set out some elements of it in order to understand the appeal and this decision. 2. The appellant commenced proceedings against the respondent in 2012 and the Tribunal's antecedent, the Consumer, Trader and Tenancy Tribunal ("CTTT"), delivered a decision on 23 October 2012. In that decision the CTTT found, in relation to a claim against the respondent for payment of $5356.70, that as the applicant (now the appellant) was not the contracting party with the respondent, the tribunal could not make an order in favour of the applicant. The tribunal found that Fibopo was the contracting party and that that company was not a party to the tribunal proceedings. 3. The appellant and Fibopo filed an application in the CTTT in May 2013 and that tribunal delivered a decision on 31 July 2013. That decision records that the appellant submitted that he, not Fibopo, was the contracting party with the respondent. The decision records that the decision as to the contracting party with the respondent had already been made (in the proceedings referred to above). The decision further records that there was no contractual relationship between Fibopo and the respondent by which one was obliged to provide to the other any HOW insurance. The application was dismissed. 4. In 2013 the appellant and Fibopo (as joint applicants) filed an application against the respondent. The tribunal made a decision in the proceedings, which was published on 15 October 2013. The application concerned a claim for compensation for delay allegedly caused by the respondent in the completion of residential building works. The application was unsuccessful and was dismissed. 5. The decision of 15 October 2013 was the subject of an appeal to the District Court brought by the applicants and they were successful in achieving an order from the District Court to the effect that the application ought to be reheard by the tribunal. The District Court held that the decision of 15 October 2013 did not identify the parties to the contract with the respondent or the terms of the contract. 6. The proceedings were remitted to the Tribunal and on 12 September 2014 the Tribunal made orders by consent that the respondent is to pay the appellant the sum of $7620.00 as the consequence of a settlement reached between them. A further order was made removing Fibopo as an applicant. 7. In April 2015 the appellant filed application HB 15/17105. CSR was the respondent. This application lead to the decision of 9 July 2015, being the decision the subject of this appeal. Grounds of appeal and the appellant's submissions 1. The appellant has filed a notice of appeal and submissions including in reply to the respondent's submissions. The grounds of appeal are as follows: 1. Fibopo was not the contracting party with the respondent; 2. The consent order made on 12 September 2014 constituted a finding that the correct contracting parties were the appellant and the respondent, and not Fibopo; 3. The decision of 9 July 2015 constituted a decision to "revisit" the consent orders of 12 September 2014 in that the decision of 9 July 2015 found that Fibopo was the party contracting with the respondent. 4. In dismissing the appellant's claim, the decision of 9 July 2015 did so by altering or correcting the consent order of 12 September 2014 to reach the determination for dismissal of the application for the provision of a HOW insurance certificate. 1. The above grounds are described by the appellant as raising a question of law in that the Tribunal did not have jurisdiction to alter or correct a consent order previously made. The further ground is that the decision of 9 July 2015 did not correctly apply the provisions of ss 7, 10, 92 and 94 of the HBA. 2. The appellant made submissions both in writing and orally at the hearing in the terms described in the following paragraphs. 3. The appellant submitted that the decision of 15 October 2013 was "questionable" and the finding reflected "uncertainty". In our view the decision on 15 October 2013 is not significant as it was the subject of a successful appeal to the District Court. 4. The appellant submitted that the effect of the consent order made on 12 September 2014 was that the Tribunal accepted that the correct contracting parties were the appellant and the respondent. The appellant submitted that before a Court or Tribunal makes a consent order it must be satisfied that the order would be within the power of the Court or Tribunal and that it must be appropriate to make the order. The appellant relied upon the decision of French J in Alexandre Alexandrovic Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557 (the Kovalev case). The appellant submitted that the Tribunal would not have made the consent order without accepting that "CSR was the correct contracting party". 5. The appellant submitted that HOW insurance is required by s 92 of the HBA and that Fibopo, which did not have a contractor's licence was not able to obtain such insurance. The appellant submitted that he had an owner builder permit issued under the HBA and that in the circumstances the only party that should and can obtain the HOW certificate is the respondent. Respondents reply to appeal and submissions 1. The respondent has submitted that: 1. the alleged questions of law and other grounds raised by the appellant have been the subject of prior decisions, thus creating an issue estoppel; 2. in respect of the decision from which the appellant seeks to appeal, the Member was in fact functus officio (by reason of the prior decisions mentioned below); 3. in any event, the respondent is not obliged to provide HOW insurance to the appellant (or indeed to his company, Fibopo); 4. the consent orders of 12 September 2014 did nothing more than record a settlement and did not constitute a decision as to the correct contracting parties. Nor were the orders concerned with the issue of the provisions of HOW insurance; and 5. the current appeal is frivolous or vexatious or otherwise misconceived or lacking in substance. 1. The respondent further submits that the question of whether the respondent was obliged to provide HOW insurance to the appellant has already been decided and those decisions determined that the respondent was not so obliged. 2. The respondent also relied upon a decision of the Local Court on 13 May 2013 in which the Local Court ordered that Fibopo and the appellant (as guarantor) pay to the respondent the sum of $7581.70. In that decision the Local Court assessor made a finding that the respondent had contracted with Fibopo and the respondent was not obliged to provide HOW insurance. 3. In addition the respondent's submission drew attention to the decision of the tribunal delivered on 31 July 2013 in which the appellant sought an order that the respondent provide to the appellant or to Fibopo a HOW insurance certificate. That decision records the fact that the tribunal had previously made an order that the appellant was not entitled to such a certificate but the tribunal was prepared to consider whether Fibopo was entitled to such a certificate. The tribunal found that there was no contractual obligation between Fibopo and the respondent by which the respondent was obliged to provide to Fibopo any HOW insurance. 4. The respondent submits that by reason of the decisions of 23 October 2012, 31 July 2013 and the Judgment in the Local Court on 13 May 2013 an issue estoppel arises preventing the same issue being decided differently from the way those decisions decided the issue as to the identity of the party contracting with the respondent. 5. In addition, the respondent claims costs relying upon s 60(2) of the Civil and Administrative Tribunal Act NSW 2013 (the Act) and in particular s 60(3)(c), (e) and (g). The respondent submits that the appeal is frivolous or vexatious or otherwise misconceived or lacking in substance and that the Appeal Panel should dismiss the proceedings with costs. 6. The respondent submits that the Tribunal was functus officio when it made the decision of 9 July 2015 because the same dispute between the appellant and the respondent had been decided previously. There is in our view some force in that submission but it is our view that it is not necessary to decide the issue. That is because the decision of 9 July 2015 dismissed the appellant's application and had the Tribunal recognised that it was functus officio the result would have been the same: the application would have been dismissed. Appellant's submissions in reply to the submissions from CSR 1. The appellant submits that the decision of 23 October 2012 was a questionable decision because it did not refer to the written contract which was the subject of the dispute. The appellant submitted that that decision also said that there was no need to make a definitive ruling on the effect of the agreement which the parties had entered into. 2. With respect to the decision of 31 July 2013 the appellant submits that that decision came about through a mistaken view taken that the earlier decision had "certain binding effect". 3. Similarly the appellant is critical of the Local Court decision and describes it as fundamentally flawed. 4. The appellant also relies upon the consent order made on 12 September 2014 and says that the order would not have been made had the Member not taken the view that the order was for the benefit of the relevant party who had contracted with the respondent, namely the appellant. Decision 1. The decision under appeal is an internally appealable decision and an appeal may be made to an Appeal Panel under the provisions of s 80 of the Act and cl 12 of the Sch 4 of the Act. In summary an appeal lies as of right on any question of law or with leave on the grounds described in cl 12 of Sch 4. 2. It is clear that the Tribunal (or its antecedents) has on three occasions found that there was a contract between the respondent and Fibopo and not with the appellant. The decision of 23 October 2012 and 31 July 2013 came to that conclusion as did the decision of 9 July 2015 (the subject of this appeal). 3. In our view the appellant's argument concerning the consent order of 12 September 2014 is misconceived. The consent order merely binds those parties who have agreed to perform the agreement contained in the consent order. The consent order imposed an obligation on the respondent to make a payment to the appellant. It did not identify the parties to the contract under consideration in the decision of 9 July 2015. If the appellant's argument were to be accepted it would have the consequence that where there is a contractual dispute between A and B by which A seeks money or other relief from B resulting in a consent order by which C is joined to the proceedings and agrees to pay A pursuant to the terms of the consent order then the result is that the effect of the consent order is to determine that the contract was in fact between A and C. That example illustrates the weakness of the appellant's argument. 4. The appellant relies upon the judgment of French J in the Kovalev case. That case involved, in part, a proposed consent order by which the parties agreed that a decision of the Refugee Review Tribunal be set aside and the matter be remitted to the Tribunal for determination according to law. His Honour said that in making a consent order the Court exercised judicial power. The exercise of that power binds the parties. The order must be clear and complete and the Court must be satisfied that it is appropriate. That case was concerned with setting aside a previous decision and remitting the matter for a rehearing. His Honour required the order to state the basis for the order setting aside the previous decision and the matters to be addressed at the rehearing. 5. In our view the Kovalev case is not authority for the propositions argued for by the appellant. When making the consent order the Tribunal was obliged to ensure that it was appropriate to do so in the sense that the order was clear and that the Tribunal's jurisdiction extended to making the order. However, the Tribunal was not obliged to determine whether the respondent was contractually obliged to pay the appellant. The order requiring the respondent to pay money to the appellant did not involve any finding by the Tribunal that the obligation to pay arose out of a contract between the respondent and the appellant. 6. In our view the correct characterisation of the consent orders made 12 September 2012 was simply to order the respondent to pay to the appellant a sum of money, and to remove Fibopo as a co-applicant in the proceedings. As stated above the orders did not determine the identity of the parties to the contract which had been the subject of the earlier proceedings. 7. In our view the appellant's argument that the decision of 17 July 2015 "revisited" or was somehow inconsistent with the consent orders is misconceived and mistaken. 8. Furthermore, the appellant's submission that the decision of 9 July 2015 was beyond the jurisdiction of the Tribunal in that it did not have the power to "alter" or "correct" a consent order is for the same reasons, misconceived and mistaken. 9. The appellant referred to ss 7, 10, 92 and 94 of the HBA. The contract between Fibopo and CSR was entered into in March 2011. The provisions of the HBA at that time relevant to this dispute are set out below. 10. Section 7 required a contract covered by the section to be in writing and to contain the information referred to in s 7. Section 10 provided that if a person contracts to do residential building work but does not comply with s 7, that person is not entitled to enforce the contract. 11. Section 92 provides that a person must not do residential building work under a contract unless a contract of insurance that complies with the HBA is in force in relation to that work in the name of the person who contracted to do the work, and a certificate of insurance has been provided. 12. Section 94 provides that if a contract of insurance required by s 92 is not in force in the name of the person who contracted to do the work in relation to any residential building work, the contractor who did the work is not entitled to any remedy in respect of a breach of the contract committed by any other party to the contract. However, a claim in quantum meruit may be permitted in some circumstances. 13. Section 96(1) provided that a person must not do residential building work otherwise than under a contract unless a contract of insurance is in force. 14. Accordingly, Fibopo was required to obtain insurance by virtue of either s 92(1) or s 96(1). It is clear in our view that Fibopo was engaged in residential building work in that it was involved in, or involved in coordinating or supervising work of the kind referred to in the definition of "residential building work" as contained in s 1 of the HBA. 15. We are satisfied that the decision of 9 July 2015 was not in error when the Tribunal decided that Fibopo was required to effect HOW insurance. The decision was also not in error in deciding that the respondent was not required to effect insurance. This conclusion arises because of the effect of s 98 which provides that nothing in Pt 6 of the HBA dealing with HOW insurance requires a person who carries out work for a person required by Pt 6 to obtain insurance in respect of that work to obtain insurance. In other words the respondent was not obliged to obtain insurance because Fibopo was so obliged. 16. Our conclusion is that the appellant has not been able to demonstrate the decision of 9 July 2015 was in error in concluding that the respondent contracted with Fibopo, and not with the appellant, or that the respondent was not obliged to provide to the appellant a certificate of insurance. 17. The appellant referred to a letter from the respondent in May 2015 agreeing to provide a certificate of insurance to the appellant. That did not eventuate. In our view the failure by the respondent to proceed to obtain insurance as foreshadowed in May 2015 does not necessarily entitle the appellant to insurance. That letter did not alter the respective legal obligations (or lack of them) of the parties. 18. In our view the appellant has failed to identify any error on a question of law and has failed to identify any basis for leave to be granted under cl 12 of Sch 4. It follows that the appeal must be dismissed. Costs 1. The respondent seeks its costs of the appeal and submits that there are special circumstances warranting an award of costs: see s 60(2) of the Act. 2. The respondent submits that in determining whether there are special circumstances warranting an award of costs the Tribunal may have regard to the following: 1. The relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law: s 60(3)(a); 2. Whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance: s 60(3)(e); and 3. Any other matter that the Tribunal considers relevant: s 60(3)(g). 1. The respondent submits that the appeal has no tenable basis in fact or law, and, is frivolous or vexatious or otherwise misconceived or lacking in substance. 2. In our view the appeal has no tenable basis in fact or law and was misconceived or lacking in substance. Nothing put forward generally by the appellant or put specifically in relation to the claim for costs suggests otherwise. The appeal was based on the argument that the decision under appeal was at odds with the consent orders made on 12 September 2014. As stated earlier that argument demonstrates a mistaken view of the consent orders and, in addition, the appeal did not demonstrate any error or leave ground (within the meaning of cl 12 of Sch 4 of the Act) in respect of the decision under appeal. 3. Further, the appellant decided to bring the appeal notwithstanding the issues had been decided in the decision of 23 October 2012, and had been explained again by the Tribunal in its reasons published on 31 July 2013. Accordingly, in our view the proceedings which led to the decision under appeal were proceedings involving issues previously ventilated and decided. Although the appellant is self-represented and possibly deserves some latitude for that reason, this is a case, in our view, where the appeal was clearly misconceived, lacked substance and had no tenable basis in fact or law. Having regard to the earlier history of the dispute between the parties those characteristics of the appeal were reasonably foreseeable. In our view special circumstances exist justifying an order that the appellant pay the respondent's costs of the appeal. However, it would not be appropriate to pay the whole of the respondent's assessed costs given the relatively small nature of the dispute between the parties and we will cap the maximum amount of recoverable costs at $5,000.00. This limit on the amount of costs reflects the principles of proportionately referred to in S 36(4) of the Act. Orders 1. Accordingly, the Appeal Panel orders: 1. Appeal dismissed; 2. Appellant to pay the respondent's costs of the appeal as agreed, or as assessed, but such costs are not to exceed $5,000.00. Amended 13 January 2016 ********** 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 Amendments 14 January 2016 - amount in paragraph 5 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: 14 January 2016