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. Application for an extension of time 1. As noted above, Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) requires that, unless the Tribunal grants an extension under s41 of the NCAT Act, an internal appeal must be lodged within 28 days from the day on which the Appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later). The relevant date in this case is the date of the orders, that is, 2 July 2015. 2. In Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 at [22] an Appeal Panel set out what they described as "the considerations that would generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal" in the following terms: 1. The discretion can only be exercised in favour of an applicant 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: 1. The length of the delay; 2. The reason for the delay; 3. The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and 4. 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 1. 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 explanation provided by the Appellant in her statutory declaration for the failure to file the appeal within time is sparse to say the least. Paragraphs 21 to 23 of the statutory declaration are as follows: 21. On 15 December 2015, I filed the notice of an internal appeal in NCAT. 22. I filed the appeal out of time as I was not aware of the time limitation. 23. I had not received legal advice at that time. 1. In response to questions from the Appeal Panel, Mr N. Blaker, Solicitor, who appeared by leave for the Appellant, referred to a medical certificate attached to the Appellant's statutory declaration as Attachment D. That medical certificate, which is dated 3 February 2016 was in the following terms: This is to certify that Mrs Indumathi Chandershekar …has been suffering from chronic back pain and pain in both knees on and off for a long time, particularly from 4/12/15 till now. She is going through some investigations ie MRI, specialised opinion etc. 1. Mr Blaker, fairly, acknowledged that that medical certificate did not add anything to the explanation provided by the Appellant in her statutory declaration. 2. It is fair to say that the delay in this case is considerable and the reasons proffered are not convincing. In these circumstances, to persuade the Appeal Panel to grant an extension of time to appeal, it may be necessary for the Appellant to demonstrate that her case has "more substantial merit than merely being fairly arguable". 3. In considering the merits of the appeal it is first necessary to note again that the order challenged was made by consent, that is the Appellant had agreed to the orders made by the Tribunal by signing a document setting out their terms. In her statutory declaration the Appellant asserts that she was not legally represented at the Tribunal and "consented to the terms of the mediation agreement on the basis that I would not have to make payment to Mr Hakim until after the claims against the other tradespeople". 4. In paragraph 20 of her statutory declaration the Appellant states "Prior to being able to bring the claims against the other tradespeople, the two tradespeople in question … filed claims in NCAT before I was able to file my claims". The Appellant states that each claim filed by the tradespeople was filed on 9 July 2015. The Appellant's statutory declaration names the tradespeople in question but it is not necessary that they be identified in these reasons. 5. In answer to questions from the Appeal Panel, Mr Blaker informed the Tribunal that the Appellant had filed cross applications against those individual tradespeople but had only done so in November 2015 in one case and even later in the other. This is not suggestive of any attempt by the Appellant to comply with the terms of the agreement reached on 2 July 2015 which required her claims to be commenced by 30 July 2015. 6. For an appeal as of right (if an extension of time to file the appeal were granted) s80(2)(b) of the Civil and Administrative Tribunal Act requires that the Appellant establish an error of law. Mr Blaker submitted that the consent orders did involve an error of law as the Tribunal did not have jurisdiction over the matter at the time the orders were made. If the Tribunal made orders without having jurisdiction to do so that would constitute an error of law. 7. Mr Blaker pointed to the provisions of Clause 5 of Schedule 4 to the NCAT Act which makes provisions specific to the Consumer and Commercial Division of the Tribunal. Sub-clause (7) of clause 5 of Schedule 4 provides as follows: (7) Effect of pending court proceedings on TribunalIf, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue. 1. We add that sub-clause 9 provides: (9) Evidence from court proceedingsIn proceedings on an application to the Tribunal for the exercise of a Division function, a finding or decision made by a court, tribunal, board, body or person referred to in subclause (2) is admissible as evidence of the finding or decision. 1. Mr Blaker submitted that the Local Court proceedings were "pending" at the time of the making of consent orders in the Tribunal on 2 July 2015 and that, by reason of the reference to the Local Court proceedings by the Respondent in the documents attached to his application, the Tribunal was aware of those proceedings on 2 July 2015. 2. An Appeal Panel addressed the meaning of the word "pending" in sub-clause (7) in Complete Irrigation NSW Pty Ltd v John McMillan [2015] NSWCATAP 34 at [33]-[35]. The Appeal Panel said that "pending" should be given its "ordinary English meaning having regard to its context within Part 5", such as "remaining undecided" or "awaiting decision". The appellant in those proceedings had submitted that the words "proceedings pending" should include proceedings "already determined" but that submission was rejected as being inconsistent with the unambiguous terms of clause 5(7), and inconsistent with the balance of the provisions in clause 5 and "likely to leave sub-clause (9) with no meaning or relevant work". 3. As the Appeal Panel stated, sub-clauses (7) to (9) of Clause 5 of Schedule 4: are designed to ensure there is no duplication or inconsistency between the various courts, tribunals and other bodies that have jurisdiction to determine an issue in dispute. In other words, an issue should only be prosecuted in one forum at a time and any findings in the forum where the issue has been determined should be given weight as evidence in subsequent proceedings. 1. We agree. In our view the Local Court proceedings cannot be said to have been "pending" on 2 July 2015 when the consent orders were made. On that date the Local Court proceedings had been resolved by agreement. 2. In this context it is not to the point that the Appellant might have resisted the Respondent's claim in the Tribunal on the basis that the dispute was the subject of a settlement agreement. However we do not need to consider that issue save to observe that, as at 2 July 2015, the Respondent appears to have complied with his obligations under the agreement by which the Local Court proceedings were resolved, insofar as they had arisen by that date, but the Appellant had not made even the first payment required by that Agreement. 3. Whether or not the Respondent's claim would have succeeded or failed, had it been pursued to determination, does not resolve the question whether the Tribunal had jurisdiction to consider the claim on 2 July 2015. In our view it clearly did have jurisdiction. 4. Mr Blaker submitted that the object of sub-clause (7) of Clause 5 of Schedule 4 to the Civil and Administrative Tribunal Act was to prevent concurrent cases running with respect to any particular claim. That much can be accepted, but that is not inconsistent with an interpretation of sub-clause (7) that (consistently with the Complete Irrigation decision) a dispute is not pending when it has been determined, whether by agreement or final decision. 5. In submitting that the Local Court proceedings were pending at 2 July 2015 Mr Blaker referred to the words which appear on the print out of the Local Court case records which were attached to the Appellant's statutory declaration as Attachment I, that is: May be re-listed at request of either party. 1. The Appellant does not suggest that any request for a re-listing had been made by either party as at 2 July 2015. Whatever the significance of the grant of leave to re-list, in the absence of any request for re-listing that grant does not establish the existence of a dispute in the Local Court proceedings as at 2 July 2015. 2. In these circumstances we do not consider that the Appellant had reasonable prospects of establishing that any issue arising under the application before the Tribunal on 2 July 2015 was the subject of a dispute in proceedings pending before a Court. There was no dispute in the Local Court proceedings as they had been resolved by agreement. 3. Section 59(1) of the NCAT Act permits the Tribunal to make such orders as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if, 1. (a) the terms of the agreed settlement were in writing signed by or on behalf of the parties and lodged with the Tribunal, and 2. the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. 1. As we consider that the Tribunal clearly had jurisdiction to determine the application before it on 2 July 2015, we do not need to decide whether s59(1)(b) of the NCAT Act would permit an Appeal Panel to set aside consent orders on the basis that the Tribunal would not have had power to make a determinative decision in the terms of the agreed settlement orders. 2. It follows from the foregoing that we do not consider that the Appellant has reasonable prospects of success, or even a "fairly arguable case", on the appeal and we cannot grant the Appellant an extension of time within which to file the appeal. 3. It is therefore strictly unnecessary to consider the prejudice to the Respondent which would arise if an extension of time were granted. However, we note that, notwithstanding the Appellant's submission that there was no prejudice, the Respondent pointed out that he had been waiting a very long time to receive payment. If there were some reasonably arguable basis on which the Appellant might establish that the Respondent was not entitled to receive payment of the outstanding $3,500, the fact that the Respondent would have to wait some time longer for his claim to be determined might not be a significant consideration. However in circumstances where it does not appear that the Appellant denies her obligation to make the further payment to the Respondent, but rather seeks to further defer the payment until resolution of the proceedings which she has belatedly commenced against the tradespeople, we find the Respondent would suffer real prejudice if an extension of time were granted and, for that reason also, decline to extend the time pursuant to s41 of the NCAT Act for the Appellant to file the Notice of Appeal. 4. Accordingly we order that: 1. The application for an extension of time within which to file the Notice of Appeal is 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: 10 May 2016