Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Horvath v Heath [2018] NSWCATAP 141 Hearing dates: 23 April 2018 Date of orders: 23 April 2018 Decision date: 23 April 2018 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member D Fairlie, Senior Member Decision: (1) Leave to appeal refused. (2) Appeal dismissed. Catchwords: APPEAL – failure to appear at Tribunal hearing – whether denial of procedural fairness – whether leave ground established – whether leave to appeal should be granted Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Category: Principal judgment Parties: Les Horvath (Appellant) Marie Heath (Respondent) Representation: Self-represented parties File Number(s): AP 18/02038 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 15 December 2017 Before: S Hennings, General Member File Number(s): HB 17/11092 reasons for decision Introduction 1. These reasons for decision concern an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) against a decision made in the Consumer and Commercial Division of the Tribunal on 15 December 2017. The original application to the Tribunal was brought by the respondent to the appeal, Mrs Heath, against the appellant, Mr Horvath. Reasons for decision were given orally at the end of the hearing of the appeal. A written statement of reasons was requested after the hearing. These reasons for decision have been prepared from the transcript. Amendments have been made for clarity and ease of reading. Background 1. The background to the matter is that Mrs Heath entered into an agreement with Mr Horvath under which Mr Horvath was to paint the exterior of her home and the interior of a pool building. Ms Heath claimed that Mr Horvath did not undertake the work to an appropriate standard, that he had indicated that he had underquoted and sought more money to complete the work. Ms Heath also claimed in her application that she later discovered that Mr Horvath was unlicensed. Tribunal proceedings and decision 1. The application to the Tribunal was lodged on 7 March 2017 and was first listed for directions on 18 April 2017. The matter came before the Tribunal for formal hearing on 29 August 2017. The hearing was not concluded on that day. The Tribunal adjourned the matter part-heard and directed the parties to provide further evidence in relation to the cost of rectification. 2. Ms Heath sought an extension of time to comply with the Tribunal's directions. On 26 September 2017, time for Ms Heath to comply was extended to 24 October and time for Mr Horvath to comply was extended to 21 November. The Tribunal later received an application for a further extension of time from Mr Horvath. The electronic file does not indicate that the application was determined. However Mr Horvath was placed on notice that the timetable made on 26 September 2017 remained unchanged unless he was advised by the Tribunal that it had been amended. 3. Mr Horvath did not appear at the hearing on 15 December 2017. The Tribunal made findings in relation to its jurisdiction to hear and determine the application, made findings in relation to the facts of the matter, awarded Ms Heath $15,576 in respect of rectifying what the Tribunal accepted was work done in breach of statutory warranties under the Home Building Act 1989 (the HB Act) and found that there were special circumstances warranting an order for an award of $5,797 for the cost of Ms Heath's expert evidence. Scope and nature of internal appeals 1. Internal appeals may be made as of right on a question of law, and otherwise with permission (that is, the "leave") of the Appeal Panel: s 80(2) NCAT Act. 2. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions 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 had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it. 1. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on that basis that: 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 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: … there was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. 1. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). 2. In Collins v Urban, the Appeal Panel stated at [84] that 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. In cases involving a self-represented litigant who cannot clearly articulate grounds of appeal and distinguish between questions of law and errors of fact in relation to which leave to appeal is required, it is appropriate for the Appeal Panel to consider the material provided on the appeal to identify what the grounds of appeal are (Prendergast at [12]). Submissions and evidence 1. In deciding the appeal, we have had regard to the following: 1. The Notice of Appeal; 2. The Amended Notice of Appeal; 3. The Reply to Appeal; 4. Mr Horvath's written and oral submissions; 5. The bundle of documents received on 8 February 2018; 6. Ms Heath's written and oral submissions and the bundle of documents received on 4 April and 9 April 2018; 7. Mr Horvath's documents in reply received on 16 April 2018; and 1. We have also had regard to: 1. The orders made by the Appeal Panel at call over; 2. The notices sent by the Tribunal in relation to Ms Heath's and Mr Horvath's extension of time applications; 3. The orders that were made in respect of Ms Heath's extension of time application; and 4. The procedural directions that were made by the Tribunal when it adjourned the proceedings on 29 August 2017. Notice of Appeal 1. The original Notice of Appeal was lodged on 16 January 2018. We are satisfied that it was lodged within the 28 day time period that is specified in cl 25(4) of the Civil and Administrative Tribunal Rules. Grounds of Appeal 1. In effect, Mr Horvath's central ground of appeal is that by the Tribunal concluding the hearing in his absence on 15 December 2017, there was a failure to afford him procedural fairness. There is also a reference in the amended grounds of appeal to a defence under s 18(F) of the Home Building Act. 2. In addition, Mr Horvath seeks leave to appeal on all three of the bases that are set out in cl 12 of Schedule 4 of the NCAT Act; that is that the decision was not fair and equitable and against the weight of evidence and that there is significant new evidence now available that was not reasonably available at the time of the hearing. Consideration Denial of procedural fairness 1. If there was a denial of procedural fairness then that would give rise to a question of law which in turn would give rise to a right of appeal. 2. It is not in dispute that Mr Horvath was sent a notice of the hearing on 15 December 2017 and that he received the notice of hearing. At the appeal hearing, Mr Horvath gave inconsistent explanations for his failure to attend that hearing. On one hand he claimed that he had forgotten about the hearing and on the other hand he claimed that he was waiting for his extension of time application to be determined and to be given a new hearing date. Those two explanations do not sit comfortably together and we conclude that there was in fact no satisfactory explanation for Mr Horvath's failure to appear at the hearing on 15 December 2017. 3. We are not satisfied that there was any denial of procedural fairness in the Tribunal proceeding with the hearing on that day. There was no obligation on the Tribunal to adjourn the hearing on its own motion in such circumstances. Mr Horvath had an opportunity to appear and either defend the matter on the material already provided or renew the application for an extension of time and ask for an adjournment. He did neither of those things. 4. In relation to the application for an extension of time, as noted previously, the notice that was sent to Mr Horvath made it clear that the existing timetable remained in place if he was not notified otherwise. 5. Overall we conclude that in the circumstances of the case, there was no denial of procedural fairness. Section 18F defence 1. We are further not satisfied on the material provided that a defence under s 18F of the Home Building Act has been established. This was not addressed in oral submissions. We are not satisfied that the material provided establishes that the Tribunal incorrectly applied the provisions of the Home Building Act. 2. We are not satisfied that any other questions of law arise in the appeal. Leave to appeal Decision not fair and equitable. 1. Whether a decision is fair and equitable has to do more with the process than it does with the outcome. We have found that there was no denial of procedural fairness and we are not satisfied that the decision as such is not fair and equitable. Decision against the weight of evidence 1. We are not satisfied that this leave ground is established. The Tribunal had Ms Heath's evidence before it and had already taken evidence from Mr Horvath. The Tribunal's decision was clearly based on the evidence that was provided. 2. We accept that there is a discrepancy in the amount that is in Ms Heath's expert's Scott Schedule concerning the amount allowed for paint. However, Ms Heath could have claimed damages in respect of margin and did not do so. This means that the amount allowed was already an amount less than could have been awarded based on the expert evidence. In such circumstances an error in calculation is insufficient to warrant the decision being considered to be against the weight of evidence. New evidence 1. The new evidence Mr Horvath seeks to rely on is Mr Hogan's report. We are not satisfied that this report was not reasonably available at the time of the hearing. The relevant time for the report to be provided was prior to the hearing that took place on 29 August 2017. Mr Hogan's report addressed whether the work done by Mr Horvath was in breach of statutory warranties. That evidence should have been provided prior to the first hearing in accordance with the Tribunal's directions. There is no explanation for Mr Horvath's failure to provide the report at that time. The orders the Tribunal made on 29 August 2017 for the parties to provide additional evidence concerned evidence in relation to rectification costs only. Mr Hogan's report goes to significantly more than rectification costs. 2. In any event, we are not satisfied that Mr Hogan's report can be considered to be significant evidence. This is because the material before us discloses that in the past Mr Horvath worked as a painter for Mr Hogan. This was not disclosed in Mr Hogan's report. If the report had been before the Tribunal, it would have been a sufficient basis for the Tribunal to consider Mr Hogan's report was not an independent expert report and to place no weight on it. 3. We are not satisfied overall that the grounds requiring leave to appeal has been established. Exercise of discretion 1. Even if any one or more of the leave grounds was established we are not satisfied that Mr Horvath may have suffered a substantial miscarriage of justice. This is because in accordance with the Appeal Panel's decision in Collins v Urban we are not satisfied that there is a significant possibility or a chance which is fairly open, that a different and more favourable result would have been achieved. 2. We are also not satisfied that leave to appeal should be granted in any event. This is because we are not satisfied that the criteria specified by the Appeal Panel in Collins v Urban as relevant to the granting of leave to appeal have been established: see [11] above. Orders 1. Leave to appeal refused. 2. Appeal 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 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: 05 June 2018