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. Grounds of Appeal 1. The appellant challenges the Tribunal's finding that the home owner is entitled to a refund of the $5,000.00 paid to the builder as a deposit for concreting work which was not done. 2. The Grounds of Appeal are not clearly expressed and as best we can ascertain the grounds appear to be as follows: 1. The Decision was not procedurally fair because orders were made in the builder's absence; 2. The Decision was not fair and equitable or was against the weight of evidence because the Tribunal should have found that the builder was entitled to retain the funds received as a deposit on account of "out of pocket expenses" for the home owner's job. 1. These matters are stated in, or can be inferred from, the information provided by the builder in the Notice of Appeal under the headings 'A. ORDERS CHALLENGED ON APPEAL' and 'B. GROUNDS OF APPEAL': 1. That Mr Danvers could not appear in person as the builder had started another job in Canberra from 12 February 2018; 2. That Mr Danvers' unavailability to appear in person at the hearing had been communicated to the Tribunal's Registry staff by email sent at 3:03 PM on 6 February 2018; 3. That the Registry staff had said such email was not received; 4. That the appellant "will forward a copy" of the email; and 5. That Mr Danvers was not given the chance to appear by telephone at the hearing on 13 February 2018 in order to put the builder's case. 1. The essence of the builder's case was that it had lost income on the Queanbeyan jobs (i.e. the jobs for other customers which were the subject of the quotations dated 15 & 16 September 2017) because the home owner was not ready for the builder to complete the concreting at the Lake Heights property. The Appeal Panel's Decision as regards the Grounds of Appeal 1. The Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act") regulates the conduct of appeals from the Consumer and Commercial Division: see s 80 and cl 12 of Sch 4. 2. Section 80 provides that an internal appeal to the Appeal Panel may be made as of right on any question of law. A ground of appeal which raises an issue of procedural fairness is a question of law. 3. Clause 12 of Sch 4 of the NCAT Act further provides that an Appeal Panel may grant leave for an internal appeal. Leave to appeal may be granted only if the Appeal Panel is satisfied that the appellant may 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. At the hearing on 13 February 2018, the presiding member found that a Notice of Hearing had been duly served on the builder at its registered office and principal place of business, that the Notice had not been returned to the Registry, and that justice required the matter be dealt with in the absence of the other party. Such findings were open to the Tribunal: see r 35 of the NCAT Rules. 2. Despite directions affording it an opportunity to provide the written material on which it sought to rely upon for this appeal, the builder did not provide a copy of the email of 6 February 2018. Nor did the builder provide any other evidence of its communication with the Tribunal's Registry staff as regards Mr Danvers appearing by telephone at the hearing because of his work commitments in Canberra from 12 February 2018. 3. Notwithstanding the builder's awareness of the hearing on 13 February 2018, there was no evidence put to the Appeal Panel of any steps taken by the builder to follow up with the Tribunal's Registry staff on arrangements for a telephone hearing, there was no explanation for the builder's non-attendance at the hearing other than work commitments, and there was no evidence of any steps taken by the builder to provide written evidence and submissions to the presiding member on 13 February 2018 to be read in lieu of personal attendance. 4. In the circumstances, we are not satisfied that there was an absence of procedural fairness to the builder at the hearing on 13 February 2018. 5. The Tribunal also had to consider whether the builder had established grounds of appeal other than on a question of law; in particular, whether leave to appeal should be granted on the basis that the builder has suffered a miscarriage of justice by reason of any of the matters in Cl 12(1)(a), (b) and (c) of Sch 4 of the NCAT Act.. 6. The SMS correspondence between the parties evidences the builder's quotation, given on or about 4 September 2017, for concreting work in an amount of $36,000.00 and the home owner's payment to the builder of the deposit of $5,000.00 about one week later. There is no doubt that the parties' dispute relates to "residential building work" within the meaning of the Home Building Act 1989 (NSW) (the "HB Act"). 7. The builder says he should have been allowed to resist the home owner's claim for the payment back of the deposit amount because he had an entitlement to retain the $5,000.00 as "out of pocket expenses"; in essence, as loss of profits on other jobs the builder could have taken in Queanbeyan but for the home owner delaying commencement of the job at Lake Heights. However, any contract between the parties arising from the SMS correspondence does not comply with the statutory requirements as to the form and content of contracts for residential building work as set out in the HB Act (see particularly s 6 and s 7). 8. Any claim for loss of anticipated profit must be based on contract; that is, the amount payable to the builder if the contract to do the concreting job had been carried out. Such claim for anticipated profits is not available by reason of the operation of s 10 of the HB Act for non-compliance with s 6, s 7E and Schedule 2 of the HB Act. 9. Given the builder's lack of compliance with the relevant statutory requirements, any offsetting claim against payment back to the home owner of the deposit amount could stand only as a claim in restitution for the value of work done at the request (if any) of the home owner. The builder did not provide any evidence to support a claim in restitution. 10. In conclusion, we are of the opinion that the Grounds of Appeal and the other submissions made by the builder do not identify any error of law. Nor are there any other grounds identified which would permit us to grant leave under Cl 12 of Sch 4 of the NCAT Act. The appeal must be dismissed. Orders 1. The Appeal Panel makes the following orders: 1. Leave is refused for the appellant to appeal on grounds other than questions of law. 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: 18 September 2018