Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bartel v Ryan [2018] NSWCATAP 231 Hearing dates: 10 September 2018 Date of orders: 04 October 2018 Decision date: 04 October 2018 Jurisdiction: Appeal Panel Before: R Titterton, Principal Member D Fairlie, Senior Member Decision: (1) Extend the time in which to file the Notice of Appeal to 15 June 2018. (2) Appeal dismissed. (3) Leave to appeal refused. (4) The Respondent is to file and serve any submissions on costs by 18 October 2018 (5) The Appellant is to file and serve any submissions on costs in reply by 1 November 2018. Catchwords: BUILDING AND CONSTRUCTION – whether Tribunal erred in denying procedural fairness to a party who was legally represented at the hearing Legislation Cited: Civil and Administrative Rules 2014 Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 17 C v W [2015] NSWSC 1774 Collins v Urban [2014] NSWCATAP 17 Coulton v Holcombe [1986] HCA 33 Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Palm Homes Pty Ltd v Kav's Constructions Pty Ltd [2015] NSWCATAP 113 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Re R [2000] NSWSC 886 Syed Ahmad Shoaib Ali Pty Ltd v Jandson Pty Ltd; Jandson Pty Ltd v Syed Ahmad Shoaib Ali Pty Ltd [2018] NSWCATAP 228 Texts Cited: Nil Category: Principal judgment Parties: Appellant: Peter Bartel Respondent: Catherine Ryan Representation: Counsel: Mr C Simpson, (Respondent) Solicitors: Beesley Hughes (Appellant) Somerville Laundry Lomax (Respondent) File Number(s): AP 18/26947 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 02 May 2018 Before: J Ringrose, General Member File Number(s): HB 17/04880 and HB 17/07028 REASONS FOR DECISION Summary 1. These reasons concern an appeal from the Consumer and Commercial Division of the Tribunal (the Tribunal) of 2 May 2017 (the Decision). 2. The appellant, Mr Peter Bartel (the Builder), commenced proceedings HB 17/04880 against the respondent, Ms Catherine Ryan (the Homeowner). Subsequently, the Homeowner commenced proceedings HB 17/07028 against the Builder. 3. In the Decision, the Tribunal dismissed the Builder's proceedings. In the Homeowner's proceedings, the Builder was ordered to pay Ms Ryan $62,300.00. The Builder appeals in relation to that decision. 4. For the following reasons, we have decided to extend the time for the Builder file the Notice of Appeal, to dismiss the appeal, and to refuse leave to appeal. Preliminary 1. The grounds of appeal are many and various, and have been set out in three iterations, namely: * the four grounds of appeal set out in the Further Amended Notice of Appeal dated 7 August 2018; * the further seven grounds of appeal appearing in the Builder's submissions dated 31 July 2018; and * the further ten matters (some of which overlap with the grounds in the Notice of Appeal and the submissions) appearing in a Schedule titled "Schedule of Monies Appellant Says He Should Not Have Been Ordered to Pay" (the Builder's Schedule). This was provided to the Appeal Panel after the hearing. The Appeal Panel sought the Schedule so as to clarify precisely the matters sought to be agitated by the Builder. 1. The Homeowner relied on submissions dated 20 August 2018 prepared by Mr Simpson of counsel. The Builder also relied on submissions in reply of Mr Hughes dated 28 August 2018. 2. We propose to structure these reasons as follows. 3. First, we will set out the principles relating to appeals generally. We will then deal with the grounds of appeal which raise questions of law, there being no leave required to pursue that appeal. Finally, we will consider whether any of the remaining grounds warrant a grant of leave. 4. Before doing so, there is one preliminary matter to consider. Preliminary issue 1. Rule 23(3)(b) of the Civil and Administrative Rules 2014 provides that for appeals of this nature (that is appeals other than residential matters), the Notice of Appeal must be filed within 28 days on which the appellant became entitled under the enabling legislation to make the application. 2. The Tribunal decision was published on 2 May 2018. Accordingly, the Builder should have been filed by 30 May 3018. The Notice of Appeal, signed by the Builder's solicitor, and states that the Builder received notice of the Decision on 2 May 2018. Accordingly, the Builder became entitled to file an appeal for the 28 day period following this date. Therefore, the Notice of Appeal should have been filed by 30 May 2018. 3. However, the Notice of Appeal was filed on 15 June 2018, some 15 days' late. At the appeal hearing, the Builder's solicitor (who had signed the Notice of Appeal stating that the Builder received notice of the Decision on 2 May 2018) told us that in fact the Builder was not personally informed of the Tribunal decision until 6 days or 9 days after the Decision was published, the Decision having been received by his former solicitors. In addition, the Builder's solicitor explained at the hearing that the Builder had thought that there was a Tribunal Registry in Lismore. 4. Even if we accept this to be the case (and we see no reason why the Builder is not bound by the fact that his solicitor, and therefore his agent received the Decision), the Notice of Appeal was still filed out of time. 5. Notwithstanding these matters, at the appeal hearing, the Homeowner did not oppose an extension of time being granted. It is therefore not necessary to consider these matters any further, and an extension of time for the filing of the Notice of Appeal is granted to 15 June 2018. Principles 1. Save for interlocutory decisions, an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel on any other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) s 80(2). Appeals as of right on questions of law 1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel considered the requirements for establishing an error of law giving rise to an appeal as of right. The Appeal Panel set out a non-exhaustive list of questions of law that might arise from Tribunal decisions. In summary, the questions of law identified are: 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 (that is 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. Appeals with leave 1. As to leave to appeal, cl 12(1) of Sch 4 of the NCAT Act states that an Appeal Panel may grant leave only if the Appeal Panel is satisfied 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. Ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 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 which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 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, Collins v Urban [2014] NSWCATAP 17 at [84]. 1. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the Act: Pholi v Wearne [2014] NSWCATAP 78 at [31]. The Grounds of Appeal 1. The Further Amended Grounds of Appeal states the grounds of appeal as follows: 1. The Tribunal member erred at law . . . in adjusting the amount payable by the Builder to the owner by applying a credit to the Owner in the sum of $26,600 when that amount included payments made by the Owner for which the Builder was not liable under the Contract. 2. The Tribunal member ought to have held that, of the amount of $26,600 paid by the Owner, only $14,247.28 was referrable to the Contract sum accordingly ought not to have applied a credit to the Homeowner of only $14,247.28 and not $26,600. 3. The Tribunal erred on Law because, having allowed into evidence the builder's notations on the Owner's building expert's scott schedule the Tribunal outhit to have afforded an opportunity for the builder to give evidence in explanation of his evidence. Paras 129], [140]. 4. In the alternative the Tribunal made an error of fact in not considering the builder's evidence filed in the proceedings such that the sum of $9,751 ought not be payable by the builder. 1. We have divided the Builder's third ground into grounds (3) and (4). 2. The Builder's solicitor indicated at the hearing that the submissions of 31 July 2018 amplified and explained these grounds. This observation is partly correct. That is to say, the submissions stated that the Tribunal erred in including an award for surveyor's fees, the retaining walls, the driveway, the flyscreens and the cost of preparing the plans and for Council approval. All these items were said not to form part of the contract or were not included in a quotation dated 20 December 2015. 3. However, the submissions also raise additional issues, namely that: 1. the Builder was suffering from depression throughout the proceedings. This matter was not pressed at the appeal hearing; 2. the Tribunal erred in relation to its assessment of the costs of the plumbing; 3. the Homeowner had the benefit of some $35,000 worth of variations carried out by the Builder contrary to the contract; 4. the Homeowner was estopped at law from denying that in effect "the quotation" is not a contract document as it was used at least with the application for home warranty insurance and also possibly to obtain finance for the dwelling house; 5. the Tribunal erred in relation to the sum awarded for fencing ($994.00); 6. the Tribunal erred in relation to the sum awarded for labour ($2,020.00). 1. The appeal papers included the Builder's submissions to the Tribunal. None of these matters were raised in his written submissions to the Tribunal. Nor was there any evidence in the form of a transcript of the hearing (despite directions to do so), which would allow us to be satisfied that these matters had been raised at the hearing. 2. As the plurality of the High Court of Australia noted in Coulton v Holcombe [1986] HCA 33 at [9], it is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against them, to raise a new argument which, whether deliberately or by inadvertence, the party failed to put during the hearing when they had an opportunity to do so: Palm Homes Pty Ltd v Kav's Constructions Pty Ltd [2015] NSWCATAP 113 at [27]. 3. At the conclusion of the appeal hearing we asked the Builder to provide a note setting out the precise amounts he says he should not have been ordered to pay. The Builder's Schedule sets out two groups of items. The first group are: * pre-contract expenses: David Robertson Designer ($1,670); Hammond & Associates ($1,320.00); * expenses relating to retaining wall, $240, $3,003.00; * surveying, $862.12; GIO $1,563.26; Insurance $938.10; * builder's Invoice $2,020; * Holcim Concreting paid by Builder $4,500.00. 1. The second group appears under the heading "Scott's Schedule" and consists of: * certification, $4,000; * driveway, $342.00; * plumbing, $4,809.00; * flyscreens, $1,800.00. 1. This is a total of $27,061.88 the Builder says that he should not have been ordered to pay. Given that the amount the Builder claimed in his Further Amended Notice of Appeal that he should not have to pay was $9,751.00, the Builder has expanded the scope of his claim, after the appeal hearing, considerably. 2. We do not think it fair to the Homeowner that the Builder's appeal grounds continue to evolve through various iterations culminating in new claims being made after the appeal hearing. However as the Homeowner, who provided a response to the Builder's Schedule, did not object, we shall consider all of the Builder's submissions in the following reasons. 3. We shall commence by examining the one clearly identified question of law, that is, the claim that the Builder was denied procedural fairness. Error of law – denial of procedural fairness 1. The Builder submits that the Tribunal erred in not allowing him to give evidence about his handwritten notations on the Homeowner's expert's Scott Schedule. 2. We note that the procedural history of this matter is set out in considerable detail in the Decision. The Builder filed his application on 1 February 2017. The Homeowner's application was filed 12 days later. Both matters were listed for directions on 16 March 2017, at which time directions were made for the filing of evidence including expert reports, witness statements and Scott Schedules. Experts were required to meet and prepare a joint statement, and both parties were granted leave to be legally represented. 3. Various extensions were sought and granted in relation to the orders for the filing of evidence. 4. The evidence filed by each of the parties is noted in pars [40] and following for the Homeowner) and [99] and following for the Builder. The Tribunal found that: 5. no expert evidence was filed by the Builder (par [76]); 6. the Builder had not provided any independent expert report in relation to the cost of completions of words and rectification of defects but chose to rely on his own assessments which were simply provided as notations on a Scott Schedule (par [132]); 7. this process did little, if anything to assist the Tribunal in determining the matter otherwise than in accordance with the Homeowner's expert's report (par [132]); 8. the Builder conceded in cross-examination that it was in his interests to put in the lowest possible pricing: par [138]. 9. the Builder "simply gave his evidence of costing by writing a figure against the particular item in the [Homeowner's] Scott Schedule. He gave no reasoning for his assessment other than to concede that it was in his interests to assess each item as low as possible": par [140]. 10. We raised with the parties' legal representatives whether or not this matter raised at the Tribunal hearing. The Builder's solicitor said that the matter was not explicitly raised, but that the Builder did not have the opportunity to make submissions on this issue. The Homeowner's counsel, who also appeared before the Tribunal, gave evidence from the Bar Table that he had listened to the sound recording, and at 9:34 the following was recorded: Member: As to p 347 and your notations, are they your only comments? Builder: Yes. 1. We have listened to the sound recording, which the Builder had placed before the Appeal Panel following earlier directions. The sound recording reflects the oral submission made to us by Mr Simpson. In the circumstances, we find the submission of the Builder that he was not afforded the opportunity to give evidence about his handwritten notations disingenuous, especially when: * the Builder was represented by counsel at the hearing before the Tribunal; * the Builder had filed affidavit evidence, which included the handwritten notation; * the Builder could have sought leave to adduce further evidence in chief; * it may have been open for the Builder's solicitor to ask him about the notations in re-examination. 1. In any event, we note that: * at [38] of the Decision the Tribunal states that the comments made by the Builder in relation to Mr Kelly's Scott Schedule would nevertheless be taken into account and fully considered; * at [133] the Tribunal noted that it was common ground that the Homeowner's son "Beau" would provide labouring and carpentry assistance to enable the works to be completed at a cheaper cost. * the Tribunal at [137] stated that it would approach the assessment of compensation on the basis that Beau would remain available to undertake carpentry and general labouring works on a fulltime basis until the contract was completed. 1. Consistent with these remarks, in making findings as to the compensation allowable for each of the 62 items in the Scott Schedule, the Tribunal took into account the Builder's comments and submissions in relation to Beau's work for over 20 items: see items 1, 7, 8, 14, 16, 22, 23, 29, 32, 33, 35, 37, 43, 45, 47, 49, 50, 52, 56, 61, 62 of par [142] of the Decision. 2. Finally, we reject the claim that the Builder was denied an opportunity to put these matters to the Tribunal. In Hammond v Ozzy's Cheapest Cars Pty Ltd t/as Ozzy Car Sales [2015] NSWCATAP 65 the Appeal Panel stated at [77]: that justice generally requires that parties against whom orders are made must be given a reasonable opportunity of appearing and presenting their case (see too Cameron v Cole (1944) 68 CLR 571 at 589). In the Tribunal, s 38(5)(c) of the Act provides that the Tribunal is to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. 1. The Builder was directed to file expert evidence. He declined to do so. He did not raise the matter at the hearing, although represented by counsel. We do not think it fair to the Homeowner to consider it now: Coulton v Holcombe. 2. If a party has been given such an opportunity, however, and has deliberately not taken it, there may well be no relevant injustice if the decision is allowed to stand: see for example CMT [2014] NSWCATGD 11 at [68]. As we have noted, the Builder was present at the hearing before the Tribunal, he filed evidence, he was represented by counsel. We reject entirely any suggestion that he was denied the opportunity, let alone a reasonable opportunity, to put these matters before the Tribunal. 3. For all these reasons, this ground of appeal is dismissed. Error – interpretation of a legal document 1. The Builder's solicitor also submitted that various other matters relating to the contract also amounted to error of law. As the Appeal Panel stated recently in Syed Ahmad Shoaib Ali Pty Ltd v Jandson Pty Ltd; Jandson Pty Ltd v Syed Ahmad Shoaib Ali Pty Ltd [2018] NSWCATAP 228 at [71], the proper construction of vital agreements or contracts is a question of law: Re R [2000] NSWSC 886 at [25], cited with approval in C v W [2015] NSWSC 1774 at [48]. 2. However, the Builder submits that the Tribunal erred in finding that some items for which compensation were awarded did not form part of the contract. The Builder submits that the Tribunal did not turn its mind to whether or not "payments made" were not "under the building contract". The Builder submits that this is "clearly" an error of law. Alternatively, he submits that it is an error of fact for which leave to appeal should be granted. 3. We do not accept that these matters raise questions of law. They raise questions of fact, that is, whether or not the particular item was included in a term of the contract. This is a question of fact, not law. Accordingly, we shall apply the principles set out above in dealing with these items. 4. We shall deal with each in turn. We shall commence with some general comments, and conclude with specific comments on each matter raised by the Builder. General 1. The reasons provided by the Tribunal are 42 pages in length. They are detailed, comprehensive and persuasive. 2. The Homeowner rightly submits that, in relation to the Homeowner's claim, the Tribunal: 1. found that, at the time the Builder left the site, he had received payments in excess of the amount he was entitled to at that time [127]; 2. found the Homeowner was therefore entitled to terminate the contract for the Builder's refusal to compete the work; 3. found that the Homeowner was entitled to the cost of completing the work, after allowances for the balance of monies that would have been paid under the contract and for costs of work that the Builder would not have been required to complete [131]; 4. noted it was also necessary, contrary to the submissions of the owner, to make allowances for the work that would have been done free of charge by the Homeowner's son, Beau [137]; 5. considered the Scott Schedule of items, and determined appropriate amounts, as set out in par [141] of the Decision; and 6. concluded, after deducting the balance of the contract sum, the amount payable by the Builder is $62,300. 1. There is substance in the Homeowner's submission that the matters raised by the Builder in the Further Amended Notice of Appeal simply seek to contradict the factual findings of the Tribunal. 2. In relation to the "direct payments" of $26,600 for building expenses, the Homeowner submits, and we accept that: 1. at [27], the Tribunal disagreed with the submission that the payments were not included in the contract price; 2. at [69], the Tribunal noted the builder did not dispute the fact of the payments or that they related to the works; 3. at [69] and [70], the Tribunal dealt in detail with the Builder's evidence where he alleged that the payments had been reimbursed by the Builder and noted the concessions the Builder made in cross-examination; 4. at [128] and [129], the Tribunal found the Builder's evidence "unsatisfactory" and accordingly found the initial payments totalled (with a concession by the Homeowner) $26,600. 1. The Homeowners submits, and we accept, that the Tribunal gave clear and detailed reasons for its findings. Many were based on concession made by the Builder himself in cross-examination, and a rejection of the Builder's evidence on other matters. 2. Significantly, the Homeowner obtained finance for the construction from Westpac Banking Corporation (Westpac) and the Homeowner sent the Builder's invoices through to Westpac for payment. On 17 February 2016, Westpac asked the Homeowner to confirm that she had made her contribution of $26,600 to the construction cost before it would approve the first payments. By March 2016, the Homeowner had paid in excess of $26,600 in direct payment of building expenses. The Homeowner sent these invoices and receipts to Westpac, but Westpac required confirmation that the invoices were all "paid towards the building contract". The Builder was asked to confirm this to the bank, and he did so on 9 March 2016 stating in a letter to Westpac: I can confirm that [the Homeowner] has contributed $26,600 as her contribution towards the contracted building price. 1. We turn now to make some short observations about the individual matters. Pre contract expenses 1. The Builder submits that the Tribunal erred in ordering him to pay contract expenses of $1,670 in respect of Designer David Robertson and $1,320 in respect of Hammond and Associates. 2. These amounts were included in the various payments included in the $26,600 referred to in the Decision and in particular in the Tribunal's conclusions at [143]. For the reasons given above, this ground is misconceived, and leave to appeal is refused. Retaining wall 1. The Builder submits that the Tribunal erred in ordering him to pay expenses of $3,243 in relation to a retaining wall. He submits that this was not a contract item. 2. This ground is misconceived, as the retaining wall appearing on the plans which formed part of the contract in evidence both before the Tribunal and the Appeal Panel. We also note the discussion at [111] of the Decision about the third variation relating to the costs of the retaining wall. 3. In the circumstances, leave to appeal is refused. Surveying 1. The Builder submits that the Tribunal erred in ordering him to pay damages of $862.12 in respect of surveying. 2. It appears that this amount is included in the various payments included in the $26,600 referred to throughout the decision but in particular in the Tribunal's conclusions at [143]. For the reasons given above, this ground is misconceived, and leave to appeal is refused. GIO/Insurance 1. The Builder submits that the Tribunal erred in ordering him to pay damages of $1,563 and $938.10 in respect of these items. 2. It appears that these amounts are included in the various payments included in the $26,600 referred to throughout the decision but in particular in the Tribunal's conclusions at [143]. For the reasons given above, this ground is misconceived, and leave to appeal is refused. Fencing 1. The Builder submits that the Tribunal erred in ordering him to pay damages of $994.40 in respect of fencing. 2. The Tribunal did make an award in relation to fencing, in the sum of $682.00: see item [4] of Scott Schedule appearing on p 35 of the Decision. The Decision there states: Building site fencing is required and claimed cost has not been disputed by the builder. 1. Given the Tribunal's finding that this matter was not disputed at the hearing, we see no error in the Tribunal's reasoning and leave to appeal is refused. Builder's invoice 1. The Builder submits that the Tribunal erred in ordering him to pay damages of $2,020 in respect of (another) "Builder's Invoice", which "does not relate to job". 2. It appears that this amount is included in the various payments included in the $26,600 referred to throughout the decision but in particular in the Tribunal's conclusions at [143]. For the reasons given above, this ground is misconceived, and leave to appeal is refused. Certification 1. The Builder submits that the Tribunal erred in ordering him to pay damages of $3,000 in respect of certification. This is referred to in item [1] of Scott Schedule appearing on p 35 of the Decision. $3,520 had been claimed. The Decision states that the item relates to building inspections and approval and that Mr Kelly, the Homeowner's expert, conceded that if the same certifier was engaged there would be a reduction in his assessed fee. In the circumstances, the Tribunal allowed the sum of $3,000. 2. The Builder made no other submissions about this item. In the circumstances, we see no error and leave to appeal is refused. Driveway 1. The Builder submits that the Tribunal erred in ordering him to pay damages of $342.00 in respect of the driveway. This is referred to in item [6] of Scott Schedule appearing on p 35 of the Decision. $3,520 had been claimed. The Decision states that although driveway gravel may have been placed on site when the builder vacated the job, an allowance for further gravel has been claimed, and was not disputed. 2. The Builder submits that this was a "non-contract item". No further submissions are advanced in relation to this. Given the Tribunal's finding that this matter was not disputed at the hearing, we see no error in the Tribunal's reasoning, and leave to appeal is refused. Plumbing 1. The Builder submits that the Tribunal erred in ordering him to pay damages of $4,809.00 in respect of plumbing. He submits that: Builder's evidence should be preferred as $3,600 paid by owner and $3,560 paid by Builder… Also quotation in which estimate for plumbing whole job is $10,000 Mr Kelly's report only in bathroom, rainwater tanks, hot water system installation, kitchen sink and tap set in ensuite left to do. Therefore weight of evidence in favour of builders evidence only $2500 1. The Builder claims he should not have been ordered to pay $4,809 in respect of plumbing. We note the following. 2. First, there is no express finding by the Tribunal that this amount was being ordered as submitted by the Builder. It does not appear in the 64 item Scott Schedule set out from pages 35 to 41 of the Decision. 3. Secondly, the Builder filed no expert evidence (par [76] of the Decision), and therefore had not provided any independent expert's report in relation to the cost of completion of works and rectification of defects but chose to rely on his own assessments were simply provided as notations on a copy of the Scott Schedule (par [132] of the Decision). 4. Thirdly, the Builder gave no reasoning for his assessments set out in the Scott schedule, other than to concede it was in his interest to assess each item as low as possible (par [140] of the Decision). 5. Fourthly, and any event, allowance was made by the Tribunal of the Builder's estimates, but he was under the difficulty of that being a person with an interest in the outcome of the matter (par [142] of the Decision). 6. No further submissions are advanced in relation to this. In the circumstances, we see no error and leave to appeal is refused. Flyscreens 1. The Builder submits that the Tribunal erred in ordering him to pay damages of $1,800 in respect to fly screens. He submits that: Not Included in Contract Price Note Development Consent not part of contract. Note also builders evidence plus screens paid. 1. In his written submission, the Builder states that he paid for the flyscreens. He submits that flyscreens are like blinds or floor coverings and are not included as a matter of course in the building industry as part of a contract to build a dwelling house. 2. This ground is misconceived, as the Tribunal made no such order. Fly screens are not referred to anywhere in the Decision, and in particular not in the Scott Schedule set out from at pp 35 to 41 of the Decision. In the circumstances, leave to appeal is refused. Conclusion 1. It suffices to indicate that leave to appeal should be refused. We are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result. In addition, it appears that the Builder is attempting to resile from a position he had adopted at the hearing and which was supported in fact by his own evidence to the Tribunal. Other matters 1. There are a number of other issues. 2. The first is that the Builder sought to rely on additional evidence, namely his own affidavit of sworn 30 July 2018. To the extent that the affidavit contains submissions, we have considered those submissions along with those of his legal representative. To the extent that the affidavit contains further evidence, it is rejected (including a receipt of Trend Windows and Doors dated 20 July 2016 in respect of the flyscreens, and a quotation issued to the Homeowner by Ballina Shire Council on 6 November 2015 in the sum of $4,897.40). We are not satisfied that, in circumstances where the Builder actually filed in evidence in the proceedings, the evidence he now wishes to give was not reasonably available at the time of the hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 17. 3. The second matter is the quotation of 20 December 2018. This document post-dates the contract by some four days. The Builder submits that the Homeowner is estopped at Law from denying that the quotation is not a contract document as it was used at least with the application for home warranty insurance and also possibly to obtain finance for the dwelling house. We reject that submission as unpersuasive. The lengthy and detailed reasons made findings of fact about the terms of the contract. 4. The third matter is that the respondent's submissions of 20 August 2018 state that the contract excluded from the work to be done by the Builder "Painting, Fencing, Driveway, Landscaping". This might be thought to suggest that the Tribunal did err in awarding compensation for the driveway ($342.00) and for fencing ($994.00). However, as we have noted above, the Tribunal found that both amounts were conceded by the Builder at the appeal before the Tribunal. It is not appropriate for the Builder to dispute them on appeal: Coulton v Holcombe. Costs 1. The Homeowner in her written submissions foreshadowed an application for costs. This is a matter where r 38A of the Civil and Administrative Tribunal Rules 2014 applies. This means that the same costs rules ("the 'first instance' costs provisions") applicable at the Tribunal hearing apply at the hearing of the appeal. 2. The Homeowner should file and serve any submissions on costs within 14 days. The Builder may respond within a further 14 days. 3. The Tribunal proposes to determine any costs application on the papers and without a formal hearing. If any party thinks the Tribunal should conduct a hearing, they should address that matter in their submissions. Orders 1. The orders of the Appeal Panel are: 1. Extend the time in which to file the Notice of Appeal to 15 June 2018. 2. Appeal dismissed. 3. Leave to appeal refused. 4. The Respondent is to file and serve any submissions on costs by 18 October 2018 5. The Appellant is to file and serve any submissions on costs in reply by 1 November 2018. ********** 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: 04 October 2018