Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Vescio v Vidovic [2017] NSWCATAP 124 Hearing dates: 10 May 2017 Date of orders: 30 May 2017 Decision date: 30 May 2017 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President I H Bailey AM SC, Senior Member Decision: (1) The application for leave to appeal is refused; (2) The stay made on 19 January 2017 is lifted; (3) Order 3 made in HB 16/15874 and HB 16/31559 is varied by substituting the date 1 July 2017 for 30 April 2017; and (4) Otherwise the appeal is dismissed. Catchwords: APPEAL – Home Building Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: Carmelo Vescio, (Appellant) Maria Vidovic and Stephen Powrie, (Respondents) Representation: C Vescio (Appellant in person). M Vidovic, S Powrie (Respondents; by telephone) File Number(s): AP 17/00683, AP 17/17673 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: n/a Date of Decision: 06 December 2016 Before: D G Charles, Senior Member File Number(s): HB 16/15874 and HB 16/35889 REASONS FOR DECISION 1. This is an appeal from a decision of the Tribunal in the Consumer and Commercial Division made on 9 December 2016 in two interrelated proceedings. 2. The proceedings involved an application, HB16/15874 by the Respondent homeowners Dr Maria Vidovic and Stephen Powrie and an application, HB 16/35889, by the Appellant builder Carmelo Vescio. For convenience we will refer to the Appellant as the builder and the Respondents as the homeowners. We will refer to the decision the subject of this appeal as "the Decision". Background 1. During 2015 the homeowners engaged the builder under seven (7) individual contracts for the performance of residential building work, by way of alterations and additions to an existing residence. Contract 1 was for a bathroom in the residence, Contract 2 was for the conversion of an existing garage into a granny flat, Contract 3 was for external work on the granny flat, Contract 4 was for internal work to the granny flat, Contract 5 involved installing concrete slabs in the front and back yards of the property, Contract 6 included variation works for roofing the carport and covered area, drainage work beside the granny flat, windows and a sliding door to the granny flat and Contract 7 was for structural alterations to the walls and ceiling of the granny flat. 2. Each contract was for less than $20,000.00 although the total of them all exceeded $60,000. Contract 1 had not commenced because it was to proceed after completion of the granny flat works under Contracts 2, 3, 4. 3. The homeowners application on 29 March 2016 concerned incomplete and defective work associated with the granny flat works under Contracts 2, 3, 4 and 6, and sought a money order of $5,159.00, or alternatively for a work order that the builder rectify the works. The homeowners also claimed that the builder had not paid subcontractors an outstanding amount of $8,022 notwithstanding payment to him of $10,000 for the work. 4. The homeowners also claimed that the builder had repudiated the contracts. 5. The builder's application, of 8 August 2016, claimed $9,641.00 for unpaid work. 6. The hearing of both applications took place on 7 November 2016 and the Decision was delivered on 9 December 2016. The Decision 1. The Tribunal below made orders in the homeowners application that: 1. the builder pay the homeowners the sum of $8,022.00 within 28 days of the date of these orders (that is before 13 January 2017); 2. the builder on or before 31 January 2017: provide to the homeowners all relevant compliance certificates; and 3. carry out a list of identified rectification work, and If the work order was not complied with then the homeowners may request a renewal of their application by filing the prescribed form before 30 April 2017. 1. In the builder's application the Tribunal: 1. declared that no amount was due and owing by the homeowners to the builder unless and until the builder complied with the orders made in the homeowners application, and 2. declared that upon compliance with the orders then an amount of $642.00 was payable by the homeowners to the builder. 3. Otherwise dismissed the application. The Grounds of Appeal 1. The builder filed a Notice of appeal on 6 January 2017 seeking orders: The matter should be referred back for a full, true and transparent hearing, with each party given the chance to ask the other party questions of fact. 1. An application for leave to appeal gave reasons why leave should be granted: The orders made on the 9/12/2016 were made arbitrarily and disregarded and contravened the objects of the NCAT Act. 1. The application for leave included a summary of the Objects of the Civil and Administrative Tribunal Act 2013 set out in section 3, but did not identify how the Tribunal had "disregarded and contravened" those objects. 2. The builder says that the Decision was not fair and equitable: due to the fact orders were made disregarding all issues and fact in particular the submission as submitted with application made by the Applicant in matter HB 16/35889 on 8 Aug 2016. 1. The builder also says that the Decision was against the weight of the evidence. Homeowners Reply to Appeal 1. The homeowners in their Reply to the Notice of Appeal stated that the appeal did not include any claim that the Tribunal made any error of law or any other error, and simply states that the Tribunal member was wrong in his deliberations and resulting orders. Procedural Considerations 1. The builder included with the Notice of Appeal an application for a stay of the orders. Submissions in support of the application were provided which stated: The Orders as handed on the 9 December are unjust and a confront to Natural Justice contrary to the reasons for the orders NCAT was fully aware of the position the builder held for the progression of the contracts. 1. The stay application was considered by the Tribunal and on 19 January 2017 the operation of the work order in [9(3)], above, was stayed until further order. The Tribunal refused to order a stay in relation to the remainder of the orders. 2. At the hearing the builder confirmed that he had not complied with the money order in [9(1)] or the order for delivery of certification documentation. . 3. One consequence of the stay is that homeowners have not yet filed the prescribed form seeking the reinstatement of their application for the making of necessary orders in HB16/15874. 4. Also on 19 January 2017 the Tribunal made directions: (1) The Appellant is to lodge with the Tribunal and provide to the Respondent by 16/2/2017: (a) All the evidence provided to the Tribunal below on which it is intended to rely; (b) Any fresh evidence on which it is intended to seek leave to rely upon; (c) The Appellant's written submissions in support of the appeal; and (d) The sound recording of the hearing at first instance, if oral reasons were given and/or what happened at the hearing is being relied on. … (4) the Appeal is listed for hearing on 12/4/2017 at 2.15 for half a day 1. Similar directions were made for the homeowners to lodge and serve documents. The Notice of Directions included advice that when filing documents/submissions six copies would be required. 2. On 15 February 2017 the builder file written submissions of 4 pages; however no materials as directed in Directions (a) (b) on 19 January 2017 were filed. 3. On 15 March 2017 the homeowners filed written submissions which referred to the fact that the builder's submissions raised new issues and included: However, nowhere in his submission does Mr Vescio explain or point to where in the original hearing the Tribunal made an error of law any other error. Additionally, Mr Vescio does not indicate where any error was made by ……the Tribunal Member in reaching the decisions on 9 December 2016… Mr Vescio also provides no evidence to support his claim that … "a preconceived attitude prevailed within the Tribunal in order to come up with the wrong decisions and orders which must be revoked…" Because of the general nature of the above claims we are unable to respond to them. We therefore request that the Tribunal dismiss the claims. 1. On 12 April 2017 the builder failed to appear at the hearing and the application was dismissed under section 55(1)(c) of the Civil and Administrative Tribunal Act, NSW 2013 (NCAT Act). The builder provided an explanation for his absence being caused by traffic delays and sought reinstatement of the application. Directions were given that the builder on or before 26 April 2017 provide to the homeowners and the Tribunal a statutory declaration and "confirmation that all submissions and evidence in support of the appeal (including any sound recording) was provided as previously directed." 2. It is not clear what occurred as a consequence of the above direction however on 19 April 2017 a Notice of Hearing of the appeal was issued which appointed Wednesday 10 May 2017 at 2.15pm. 3. On the 10 May 2017 the hearing was conducted. It became clear that, notwithstanding the numerous directions for the filing and delivery of evidence in support of the appeal, the builder had no materials upon which he could rely in the conduct of the appeal. Consideration of the Decision 1. The Decision is some 21 pages in length, and is thorough, carefully reasoned and detailed. The Decision refers to the evidence filed by the builder, to his submissions and to his oral evidence at the hearing. 2. A critical issue addressed by the Tribunal was identified in paragraph 30 being: …whether upon an examination of the parties' conduct including their communications in 2015, it can be said, objectively, that there was an intention to repudiate the relevant contracts 1. The Tribunal set out in considerable detail, in 16 sub-paragraphs in paragraph 31, the reasons for finding that the builder had breached four of the contracts and in paragraph 32 concluded that he was "comfortably satisfied that the builder's conduct evinced an intention to no longer be bound by Contracts 3, 4, and 6; or alternatively, to fulfil the Contracts in a manner substantially inconsistent with the builder's obligations." 2. Finally the reasons for dismissing the builder's application are set out over pages 14 to 18 of the Decision. Nature of Appeal 1. The making of internal appeals in the Tribunal is addressed in s 80 of the NCAT Act. If the appellant is able to identify an error involving a question of law, there is a right of appeal. 2. Otherwise, leave to appeal is required: see s80(2)(b). Leave may only be granted if the appellant can demonstrate that they may have suffered a substantial miscarriage of justice: see Sch4 Cl12 of the NCAT Act. 3. The builder has not identified any question of law in his Notice of Appeal, nor can the Appeal Panel identify any error of law 4. An Appeal Panel may grant leave to appeal only if it is satisfied that the Appellant might 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. The principles applicable to the grant of leave were set out by the Appeal Panel in Collins v Urban [2014] NSWCATAP 17. This decision states that in order to be granted leave to appeal, the appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there is a bona fide challenge to an issue of fact. 2. Further the Appeal Panel said that, ordinarily, it is appropriate to grant leave only if the matters involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken, or 5. 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 noted, the builder says the Decision was not fair and equitable, as it disregarded the issues including particular submissions which he had made. The builder also says that the Decision is against the weight of the evidence. 2. If the builder wished to make good these broad assertions he would have to provide evidence establishing that there were errors which fell within the relevant principles. There was no such evidence filed which might have permitted the builder to support his contentions. Conclusion 1. We have considered the submissions made by Mr Vescio both in writing and orally during the hearing. 2. We conclude that there is no basis established by Mr Vescio for a grant of leave which satisfies the relevant principles 3. Orders will be made refusing to grant leave to appeal and dismissing the appeal. 4. In addition, it is necessary to lift the stay order made on 19 January 2017 and to vary the date of 30 April 2017 contained in order 3 of the orders made on 9 December 2016 to a date in the near future so that the respondents may seek a renewal of their application. The date we propose is 1 July 2017. Orders 1. Accordingly, the Appeal Panel makes the following orders: 1. The application for leave to appeal is refused; 2. The stay made on 19 January 2017 is lifted; 3. Order 3 made in HB 16/15874 and HB 16/31559 is varied by substituting the date 1 July 2017 for 30 April 2017; and 4. Otherwise the appeal is dismissed. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar 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 04 August 2017 - Amend file number to AP 17/00683 and include related file number AP 17/17673 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: 04 August 2017