Kong Crete Pty Ltd v Molter [2018] NSWCATAP 219

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kong Crete Pty Ltd v Molter [2018] NSWCATAP 219 Hearing dates: 18 June 2018 Date of orders: 18 September 2018 Decision date: 18 September 2018 Jurisdiction: Appeal Panel Before: F Corsaro SC, Senior Member D Charles, Senior Member Decision: (1) Leave is refused for the appellant to appeal on grounds other than questions of law. (2) The appeal is dismissed. Catchwords: APPEAL – home building dispute – a hearing in the absence of a party - no error of law on the grounds of procedural fairness - no other grounds for leave to appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Category: Principal judgment Parties: Kong Crete Pty Ltd (Appellant) Aaron Molter (Respondent) Representation: The parties were self-represented File Number(s): AP 18/15683 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 13 February 2018 Before: D Harvey, General Member File Number(s): HB 17/53586

REASONS FOR DECISION

Background & Procedural History 1. These appeal proceedings concern a home building dispute. On or about 11 September 2017, the appellant received payment by direct bank transfer from the respondent of an amount of $5,000.00. Such payment was described in telephone text messages (SMS) between the parties as being the deposit "for concreting in the next few weeks" at the respondent's residential property at Lake Heights NSW. We will refer to the appellant as the "builder" and the respondent as the "home owner". 2. The appeal is from a decision made on 13 February 2018 in the Consumer and Commercial Division of the Tribunal (which we will refer to as the Decision). The Decision was made in the absence of the builder. The builder was the respondent in the first instance proceedings. 3. The Notice of Appeal was filed on or about 6 April 2018. The Notice of Appeal states that notice of the Decision was received by the builder on 15 March 2018. 4. Under the Civil and Administrative Tribunal Rules 2014 (NSW) (the "NCAT Rules") an appeal from a decision concerning a home building dispute must be filed 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 (see r 25(4)(c) of the NCAT Rules). On its face, it appears as if the appeal was filed within time. 5. In summary, the Decision contained the following orders: 1. That the Tribunal was satisfied notice of the hearing had been duly served on the builder and it considered justice required the home owner's application for orders of the Tribunal be dealt with in the absence of the builder; and 2. The builder was to pay the home owner the sum of $5,000.00 on or before 20 February 2018. 1. On 26 April 2018, the Tribunal's Appeal Panel made directions for the conduct of the appeal. In addition to the Notice of Appeal, the builder provided, pursuant to the directions of 26 April 2018, copies of quotations dated 15 & 16 September 2017 in respect of concreting jobs for other customers in the Queanbeyan NSW area. Also pursuant to the directions of 26 April 2018, on or about 8 May 2018, the home owner provided to the Tribunal and the builder a Reply to Appeal which attached a written submission, the copy quotations for the other jobs in Queanbeyan (already provided by the builder), a bank statement evidencing the transfer on 11 September 2017 of the $5,000.00 to the builder's bank account, and a copy of the SMS correspondence between the builder and the home owner in the period from 14 July 2017 to 6 November 2017. 2. Despite a direction affording it an opportunity to do so (see direction 4 made on 26 April 2018), the builder did not provide any written submissions in reply. 3. At the hearing of the appeal both parties appeared by telephone; in the appellant's case by its director, Mr Danvers. At the conclusion of the hearing on 18 June 2018, the Appeal Panel made further directions, as follows: 1. On or before 25 June 2018, the appellant is to provide the Appeal Panel and the other party any further documents and submissions; 2. On or before 2 July 2018, the respondent is to provide to the Appeal Panel and the other party any documents and submissions in reply; 3. The Appeal Panel will determine the appeal on the basis of the written material already provided by the parties, the oral submissions made at today's hearing and any further documents and submissions provided pursuant to the above directions. 1. No other written material has been provided to the Appeal Panel by the parties.