Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Valencia v Blue Haven Pools South Pty Ltd [2018] NSWCATAP 274 Hearing dates: 23 October 2018 Date of orders: 22 November 2018 Decision date: 22 November 2018 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member J Kearney, Senior Member Decision: (1) The application to extend time for the filing of the Notice of Appeal is refused. (2) The appeal is otherwise dismissed. Catchwords: PRACTICE AND PROCEDURE – time to appeal – extension of time application – refused – no adequate explanation and no reasonable prospects of success. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Brewarrina Shire Council v Beckhaus Civil Pty Ltd & 1 Or [2005] NSWCA 248 Collins v Urban [2014] NSWCATAP 17 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Texts Cited: Nil Category: Principal judgment Parties: Ruben Valencia (First Appellant) Gloria Valencia (Second Appellant) Blue Haven Pools South Pty Ltd (Respondent) Representation: Solicitors: R Valencia, In person for (Appellants) Somerville Legal (Respondent) File Number(s): AP 18/33031 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not Applicable Date of Decision: 19 February 2018 Before: C Paull, Senior Member File Number(s): HB 17/44563 reasons for decision Introduction 1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT ACT) against a decision made in the Consumer and Commercial Division of the Tribunal on 19 February 2018. 2. For the reasons set out below, we have decided to refuse the application to extend the time in which to lodge the Notice of Appeal and to otherwise dismiss the appeal. 3. The appellants are Gloria and Reuben Valencia. Reuben Valencia appeared for both himself and his wife Gloria. They were the applicants in home building proceedings HB 17/44563 (building application). Background 1. In March 2016, the appellant entered into a contract with the respondent for the installation of a swimming pool at an address in Matraville NSW (contract). Disputes arose concerning the performance of the contract. Tribunal proceedings and decision 1. A building application was lodged with the Tribunal by the Appellants on 10 October 2017. 2. The application was listed before the Tribunal on 3 November 2017 when the Tribunal entered into consent orders (the Consent Orders). These consent orders did not dispose of all issues, the proceedings otherwise being fixed for hearing. 3. On 21 December 2017, the parties again came before a differently constituted Tribunal to that which made the Consent Orders. At that time, the parties' dispute concerned compliance with Order 4 of the Consent Orders and there were other disputes as to work to be done pursuant to the contract. Consent Order 4 required: "By consent, the respondent will supply 25 square metres of concrete at no cost to the applicant, any concrete supplied in excess of that amount will be at the applicant's cost." 1. On that day, the Tribunal suspended Order 4, and fixed for hearing the issues remaining to be resolved. The substantive hearing occurred on 19 February 2018. 2. On 19 February 2018, the Tribunal determined the dispute. 3. The Tribunal dismissed the application and provided reasons for decision (Reasons). Relevantly, the Tribunal found that: 1. Both parties agreed that the contract between them remained on foot. 2. Although the respondent agreed it had not complied with Consent Order 4, the applicant did not press compliance with it. 3. There was a complaint that the respondent had not complied with Order 8 of the Consent Orders, but the Tribunal determined that the applicant had not proven non-compliance. 1. There were 17 other "Items", each of which was determined adversely to the Appellants. Consideration 1. There is a right of appeal on a question of law, and otherwise leave is required: s 80(2) of the NCAT Act. 2. The circumstances in which the Appeal Panel may grant leave in the present case is regulated by Sch 4, cl 12(1) of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellants may have suffered a substantial miscarriage of justice. The principles set out in Collins v Urban [2014] NSWCATAP 17 are relevant to the grant of leave. 3. It was common ground between the parties that, since the making of the decision under appeal, the respondent has purported to terminate the contract between the parties. This was done by letter dated 7 March 2018 and said to be effective on that day. Subsequently, on 10 September 2018, the Appellants (as applicants), commenced other proceedings in the Tribunal, number HB 18/39069, against the Respondent (new proceedings). The Appeal Panel was told that, in the new proceedings, the Appellants challenge the purported termination and raise claims for damages for breach of contract. These proceedings are not the subject of this appeal. Extension of time needed 1. The Notice of Appeal was lodged on 26 July 2018, more than the 28 day period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules). 2. The Notice of Appeal identifies that the Appellants seek an extension of time. 3. The Appeal Panel may extend time – see s 41 of the NCAT Act. Principles relevant to the exercise of that discretion are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. Some of the factors to consider in an application for extension of time include: 1. The length of the delay 2. The reason for the delay 3. The appellant's prospects of success 4. The extent of any prejudice to the respondent 1. The Notice of Appeal states that the decision below was received by the Appellants on the day it was given. Accordingly, any appeal should have been filed by 19 March 2018. That means the current appeal is more than 4 months out of time. 2. The Appellants did not directly address this issue in their Notice of Appeal or other written material. During the appeal, the Appellants were asked for the reasons for the delay. The Appellants said they obtained legal advice from a lawyer on 24 and 26 April 2018. The Appellants said they first found out about the 28 day time limit "about 2 months" after receiving the decision on 19 February 2018. They said that in June 2018 they applied for further information from NCAT and later spoke to "Advocacy Services". The Appellants said that they want a fair go and they want justice. 3. The Respondent opposed the application to extend time, saying there was no reasonable explanation for the delay. The Respondent says that there is an unexplained delay of 3 months from the time legal advice was obtained, and the prospects of success are weak as no grounds have been articulated in the Notice of Appeal. Further, the Respondent says that extending time would be futile because the matters sought to be agitated in the appeal are matters the subject of the new proceedings commenced after the Respondent purported to terminate the contract. 4. The length of the delay, the lack of any adequate explanation, and the fact the Appellants knew of their right of appeal and took no action counts strongly against the grant of an extension of time. 5. As to the prospects of success, the grounds of appeal in the Notice of Appeal are not readily discernible. 6. After lengthy discussion during the appeal hearing, the Appeal Panel, with the agreement of the Appellants, distilled the following elements in the Appellants' appeal: 1. The Appellants did not contend that there was an error of law. 2. The Appellants did seek leave to argue that findings in the Reasons were either against the weight of the evidence or were not fair and equitable. In doing so, the Appellants identified seven issues the subject of complaint, as follows: 1. The Appellants wanted the respondent to complete the construction of the pool – the Appellants conceded this was the subject of the new proceedings. Accordingly, the Appellants did not press this issue. 2. There was an issue about a structural wall (identified as Item 12 in the reasons the subject of this appeal). The Reasons state it is not possible to make an order for damages while the contract is still on foot (as it was at the time of the decision under appeal). Brewarrina Shire Council v Beckhaus Civil Pty Ltd & 1 Or [2005] NSWCA 248 at [68] supports this conclusion. The Appellants said they intended to argue this claim in the new proceedings. This issue was also not pressed. 3. There was an issue about a claim for damage to the Appellants' driveway (identified as Item 8 in the reasons the subject of this appeal). The reasons state that the Tribunal was not satisfied that the applicant had proved his case. The Appeal Panel reviewed the evidence and photos provided to the Tribunal, and heard submissions from the Appellants and Respondent. The Appeal Panel is satisfied that the finding by the Tribunal was open on the evidence as the evidence does not establish that the respondent damaged the driveway in circumstances where other work was also being carried out on the site by other contractors. 4. There was an issue about a claim for removal of rubbish (identified as Items 3 & 4 in the reasons the subject of this appeal). The reasons state that other contractors were on site doing work and the Tribunal was not satisfied the applicant had established this claim. The Appellants conceded in the appeal hearing that other contractors were on site. Having reviewed the material relied upon by the Appellants, the Appeal Panel is satisfied this conclusion was open to the Tribunal. 5. There was an issue about a claim for cutting a gas pipe (identified as Item 5 in the Reasons). The Appellants conceded that this was the subject of the new proceedings. Again, this issue was not pressed. 6. There was an issue about a claim for re-plumbing water (identified as Item 16 in the reasons the subject of this appeal). The Reasons noted that the Appellants did not quantify the claim, and the claim was dismissed. In the appeal hearing, the Appellants conceded that they had not paid this sum as at 19 February 2018. Consequently, the finding by the Tribunal was open on the evidence. 7. There was an issue about a claim for the "deposit" for the contract (identified as Item 2 in the reasons the subject of this appeal), which the Appellants said had been later mischaracterised. The Appellants conceded this was also the subject of the new proceedings. Again, this issue was not pressed. 1. The Appellants also seek leave to argue that significant new evidence had arisen, which was not reasonably available at the time of the hearing. The Appellants sought to rely on an email dated 24 October 2018 (the day of the hearing) from the building certifier for the pool project. This was marked as MFI 1, pending further argument on the issue. However, the issues identified by the Appellants did not bear upon the contents of the email dated 23 October 2018 and the document was not formally admitted into evidence on the appeal. 1. As can be seen from our analysis of the claims made, the appeal has weak prospects of success, it being unlikely that leave to appeal would be granted in relation to any of the findings made. This conclusion counts against granting an extension of time. 2. Having regard to the above, we are not satisfied that the time to lodge the Notice of Appeal should be extended. Rather, in our view, the application to extend time should be refused and the appeal otherwise dismissed Orders 1. The Appeal Panel makes the following orders: 1. The application to extend time for the filing of the Notice of Appeal is refused. 2. The appeal is otherwise 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: 22 November 2018