Chandershekar v Hakim [2016] NSWCATAP 100

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chandershekar v Hakim [2016] NSWCATAP 100 Hearing dates: 11 April 2016 Date of orders: 10 May 2016 Decision date: 10 May 2016 Jurisdiction: Appeal Panel Before: P Callaghan SC, Principal Member D Robertson, Senior Member Decision: 1. The Application for an extension of time within which to file the Notice of Appeal is refused. 2. The Appeal is dismissed. Catchwords: Home building – consent orders – extension of time for commencement of appeal – no reasonable prospects of success Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 Complete Irrigation NSW Pty Ltd v John McMillan [2015] NSWCATAP 34 Category: Principal judgment Parties: Indumathi Chandershekar (Appellant) Wali Hakim (Respondent) Representation: Appellant: Mr N. Blaker, Solicitor Respondent: In person File Number(s): AP15/66782 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Date of Decision: 02 July 2015 Before: W Sponza – General Member File Number(s): HB15/36863

Reasons for Decision 1. This is an appeal against an order made in the Consumer and Commercial Division of this Tribunal on 2 July 2015 following an agreement reached by the parties at a conciliation. The Appellant (the respondent below) seeks to set aside one of four orders then made, which was in the following terms: 4. By consent, the Respondent agrees to pay the Applicant the sum of $3,500 on or before the 10/11/15. 1. The Notice of Appeal was filed on 15 December 2015, that is about four and a half months outside the 28 day period for the filing of an internal appeal laid down by Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014. If the appeal is to proceed, the Appellant must obtain an extension of time for filing the Notice of Appeal pursuant to s41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). 2. The Applicant filed in support of her Notice of Appeal a statutory declaration dated 25 February 2016 together with attachments. That statutory declaration was received into evidence on the Appellant's application for an extension of time. 3. The background facts, which appear from the application by which the proceedings were commenced in the Tribunal and from the Appellant's statutory declaration are not in dispute and are as follows: 1. In 2012 the Respondent entered into an agreement with the Appellant for the provision by the Respondent of architectural and project management services in relation to work the Appellant proposed to have carried out on premises she owned at Prospect. 2. In September 2014 the Respondent commenced proceedings in the Local Court at Parramatta seeking payment of moneys alleged to be due under the agreement. 3. On 5 December 2014 the Local Court proceedings were referred to mediation where an agreement was signed by the parties. 4. By that agreement: 1. the Respondent agreed to provide the Appellant with the names and addresses of the carpenter, bricklayer and plumber who worked on the Appellant's premises within 21 days. 2. The Appellant agreed to pay the Respondent the sum of $3,800 within 21 days of receiving that information. 3. The Respondent agreed to use his best endeavours to assist the Appellant in the prosecution of claims against the carpenter, bricklayer, plumber and an electrician in the Department of Fair Trading. The Respondent agreed to appear, if requested by the Appellant, as a witness in any such claims, and 4. The Appellant agreed to pay the Respondent a further sum of $3,800 within 14 days of the determination of the claims before the Department of Fair Trading. 1. The Local Court records, which were Attachment I to the Appellant's statutory declaration, recorded in respect of 5 December 2014: "Settled after CJC mediation in accordance with agreement. May be relisted at request of either party." 2. On 2 June 2015 the Respondent commenced proceedings in the Tribunal claiming $7,800, being the allegedly unpaid portion of the contract price, plus $4,500, which was identified as being for "additional work and interest". In the document setting out the basis for the Respondent's claim which was attached to the Application the Respondent acknowledged the agreement reached at the Parramatta Local Court on 5 December 2014. It is not in dispute that neither of the payments provided for by the agreement of 5 December 2014 had been made by 2 June 2015. 3. The Respondent's application was listed before the Tribunal on 2 July 2015 and was referred for conciliation. With the assistance of the Tribunal's conciliator the parties reached an agreement, which they signed, in the following terms: 1. On or before 9 July 2015 the Respondent agrees to pay the Applicant the sum of $3,800; 2. The Applicant agrees to provide evidence at any Tribunal, conciliation and/or hearing in support of any application made by Respondent against the trades people who undertook work for the Respondent. 3. The Respondent will commence actions against the trades people on or before 30 July 2015; 4. The Respondent agrees to pay the Applicant the sum of $3,500 on or before 10 November 2015; 1. The terms of the agreement were incorporated into orders made by the Tribunal on 2 July 2015 each of which was identified as being made by consent. 2. The Appellant paid the sum of $3,800 in accordance with Order 1 of the consent orders of 2 July 2015. She has not paid the sum of $3,500 required by Order 4 and it is that order against which she seeks to appeal. 1. The grounds of appeal identified in the Notice of Appeal filed by the Appellant are: That the Appellant suffered a substantial miscarriage of justice because the decision of the Tribunal under appeal was not fair and equitable. The Appellant submits the following: (1) That the Tribunal did not have the jurisdiction to make the orders, as the matter had already been brought and determined in Parramatta Local Court on 5 December 2014…; and (2) The decision made by the Tribunal will cause the Applicant to suffer a substantial miscarriage of justice since the decision was not just and equitable, as the Orders made by the Tribunal were made in relation to the same subject matter as the previous Local Court Orders. The result of the Orders imposed is that the Respondent will be entitled to claim an extra $3,500 that he is not entitled to. 1. The Notice of Appeal also indicated that the Applicant sought leave to appeal on the same bases as are set out as grounds of appeal. 2. The Notice of Appeal acknowledged that an extension of time was required and sought an extension of time. In support of the application for an extension of time the Notice of Appeal stated: The Appellant was unable to obtain legal advice at the time of the decision being made. The Appellant did not understand and comprehend the effect of the orders in which she entered into before the Tribunal on 2 July 2015. The merits of the Appeal, submitted to be extensively in support of the Appellant, is a consideration which, in the interests of justice, should grant an extension of time to lodge the appeal with the Tribunal and submits that it is warranted in the circumstances. There is no prejudice to the Respondent should the Appellant be granted an extension of time to lodge the appeal.