Civil and Administrative Tribunal New South Wales Medium Neutral Citation: JCK Building Solutions Pty Ltd v Marr [2019] NSWCATAP 122 Hearing dates: 16 April 2019 Date of orders: 09 May 2019 Decision date: 09 May 2019 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member P Durack SC, Senior Member Decision: 1. Extend the time for lodgement of the appeal to 7 January 2019. 2. Leave to appeal is refused. 3. The appeal is dismissed. Catchwords: APPEAL – false oral evidence allegedly given at hearing – fresh evidence claim – new evidence was reasonably available at the time of hearing -concession that builder would carry out certain rectification work - leave to appeal refused Legislation Cited: Civil and Administrative Tribunal Act 2013 Home Building Act 1989, s 18B(1) Cases Cited: N/A Texts Cited: N/A Category: Principal judgment Parties: JCK Building Solutions Pty Ltd v Simon Brett Marr & Amy Marr JCK Building Solutions Pty Ltd v Simon Brett Marr & Amy Marr Representation: The Appellant was unrepresented Counsel: M Davis (Respondents) Solicitors: McMahon Lawyers (Respondents) File Number(s): AP 19/01093 Publication restriction: None Decision under appeal Court or tribunal: Civil & Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 05 December 2018 Before: GK Burton SC, Senior Member File Number(s): HB 16/43946 REASONS FOR DECISION Summary 1. The appellant (Builder) is the builder of some works at the residential premises of the respondents (Owners) in Jannali, NSW. The building contract for these works remains unterminated and the building works are incomplete. 2. The Builder appeals from two aspects of a decision of the Tribunal in a claim brought by the Owners for defective work. The first aspect concerns part of a work order made by the Tribunal for the removal of floor tiles and the waterproof membrane in two bathrooms. The second aspect concerns part of the same work order that required the replacement of six structural posts and their footings supporting some decking. 3. The appeal was lodged three days out of time. The Builder explained why this occurred and the Owners do not oppose the grant of extension of time in which to appeal. In these circumstances, we grant such an extension pursuant to s 41 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). 4. No error of law was raised by the appeal. Accordingly, leave to appeal was required. 5. For the reasons set out below, in our opinion, the Builder has not satisfied the requirements for the grant of leave to appeal. Accordingly, we have decided to refuse leave to appeal and to dismiss the appeal. The Tribunal decision 1. The main outcome of the proceedings brought by the Owners in the Tribunal at first instance was the making of an order under which the Builder was to complete the work itemised in a Schedule to the decision. 2. On the appeal, the relevant items in this Schedule were items 15, 31 and 32, which were as follows: 15. Replace all structural posts and footings installed by [the Builder] that support decks and awnings/roofs; install capped posts that are treated internally and externally against rust, that allow drainage of water from inside the post and that are mounted on concrete pad footings above soil level so that the posts and footings comply with relevant Australian standards and National Construction Code performance requirements and are certified by a structural engineer….. 31. & 32. Remove the existing floor tiles and waterproof membrane in the ground floor bathroom and first floor en-suite bathroom; replace with waterproof membrane under new tiles that are, on the applicant's choice, smaller than the existing tiles or cut if the existing-size tiles are used so as to achieve drainage without ponding to the existing waste points … 1. The reasons of the Tribunal that were relevant on the appeal to Item 15 included: 1. At the hearing on 9 July 2018 concurrent evidence initially comprised the experts for each party in building and structural engineering: at [9]. The hearing was adjourned to 25 July 2018, when the evidence was completed. The hearing was then further adjourned to a day for oral submissions on 29 August 2018. On 29 August 2018 the Builder's legal representative provided extensive written material in two documents (marked MI 1 and MI 2): at [12]. 2. A major issue contested on the first two days of hearing, being aspects of Ex R1 Items 15 and 17 relating to the quality of internal galvanising of and drainage in the steel support posts for, and aspects of the timber construction of, the deck, had become clarified as the subject of concession or were not pressed at the submissions hearing on 29 August 2018: at [43]. 1. The reasons of the Tribunal that were relevant on the appeal concerning items 31 and 31 included: 1. The Owners' expert maintained that the fall in the floor to waste was half or less than half of what was the recommended ratio of fall and wet areas in the relevant Australian Standard. This caused unacceptable ponding and migration of water through a defective door seal to the adjacent timber floor, with tiles of the size chosen for the bathrooms, being 30cm x 60cm: at [90]. The Owners' expert said that the Builder ought, prior to going ahead with laying the tiles, to have pointed out to the Owners the difficulties created in terms of fall by large tiles and given options: at [91]. 2. The Builder's expert said that, in hindsight: The Builder and tilers and the Owners should have a site meeting to discuss. Earlier in the concurrent evidence, the Builder's expert had said that the Builder "could" point the issue out to the Owners: at [95]. The Builder's expert agreed in his report, "[t]he floor tiles used are considered large and this is an inherent problem where large tiles should not be used in a small bathroom as falls are very difficult to achieve": at [96]. 1. The Builder's expert said he did not observe unacceptable ponding during a flood test at the conclave. He said the bathroom floor was operating as intended: at [97]. The Owner's expert disputed that the size and length of ponding could be attributed to surface tension other than the effect of surface tension from the inadequate fall; at [98]. 2. In cross-examination the female owner said that she did not select the tiles. She gave a list to the Builder with varying sizes, 30cm x 30cm and 30cm x 60cm, and asked the Builder "which would be better". She chose the colour, the Builder purchased the size without further discussion. The laundry tiling was 30cm x 30cm. The bathroom tiling, in both bathrooms, was 30cm x 60cm. The tiler asked her what kind of design she would like: at [101]. 3. The relevant Australian Standard which would be a basis for a deemed–to-satisfy performance requirement solution provides for a recommended fall ratio that could not be achieved with the pre-existing flooring and the size of the 30cm x 60cm tiles, at least without a dangerously high step at the door: at [102]. 4. This intrinsically created a situation requiring discussion between the Builder and the Owners about what was to be done. The opinion of Mr Cass, a tiling expert on ponding in bathroom floors referred to in a decision cited by the Builder, stated that a fall of less than 1:100 inside or outside the shower was a matter that should be clarified with the Owner in writing before proceeding with the work. Mr Cass also stated that falls of less than 1:100 should not be automatically regarded as a defect unless associated with ponding: at [103]. 5. The important point in the present case is that Mr Cass' published opinion reinforces the need for clarification in the present situation by the Builder (who has the relevant knowledge, or ought to have known) with the Owners. That was not done [our emphasis]. Some potential solutions required further expert investigation to see if they were available (any existing flooring support and slab scabbing) and, if available, a contract variation. Others required at least a choice by the Owners of either a smaller tile, or cutting in all relevant tiles in all relevant wet areas, or a risky step at the bathroom door: at [104]. 6. Such discussion did not occur and was not requested by the Builder [our emphasis], who was the person who knew or ought to have known it was required. The only, slim evidence of a discussion was the female owner spoke with the tiler, after the selection by the Builder of the tile size, and appeared to deal with aesthetic rather than fall; the tiler did not give evidence about the scope of the discussion. The Owner's range of size within which the Builder selected was uninformed by the discussion concerning the effect of size on fall that has been mentioned: at [105]. The lack of discussion, which the Builder was responsible to initiate [our emphasis], seems to me to be in breach of the statutory warranties in ss 18B(1)(a) and 18B(1)(e) of the Home Building Act 1989 (NSW) . Such a discussion showed a lack of due care and skill and the work would not result in a dwelling reasonably fit for occupation as a dwelling, namely, with a bathroom with appropriate measures to avoid water ponding for long periods on the bathroom floor and flowing to timber surfaces: at [106]. 7. It is no answer to the foregoing to say that, in this situation, the bathroom was operating as intended. Absent compliance with the recommended fall in the Australian Standard that formed the deemed-to-satisfy performance solution, a conflict between expert assessment on the physical evidence, and an absence of certification by relevant experts and by a principal certifying authority on the basis of supporting certification, the Tribunal would be placing itself in the position of a retroactive certifier to make a finding that the alternative performance solution of what was built and operating met the relevant construction code requirements: at [107]. 8. In any event, it seems to me that the photos taken at the conclave by the Owners' expert demonstrated that such certification would not have occurred, even if the water did not, as the Builder's expert maintained, escape the bathroom to external timber, which the Tribunal does not need to decide: at [108]. 9. The solution in the work order will achieve what should have been achieved if the breach had not occurred, namely, initiation by the Builder of a discussion and instructions on the form of work within the scope of contract works. There is sufficient evidence of the need for a form of remediation that corrects the fall: at [113]. 10. The respective experts repeated their opinions in substantially similar terms to that for the ground floor main bathroom and there was no separate cross-examination. The female owner's evidence about tiling similarly applied: at [114]. Accordingly, I reach the same conclusion and work order as I have done in respect of the ground floor bathroom: at [115]. The appeal grounds 1. By the appeal, the Builder sought to challenge the inclusion of items 15, 31 and 32 in the work order. 2. In its grounds of appeal in the Notice of Appeal, the Builder, which was unrepresented, stated in unspecific terms: The Respondent has committed perjury in cross-examination and other areas. We believe the Tribunal member acted in favour of the Respondent during the course of the hearing following the decision handed down. Tribunal member allowing evidence at the hearing not in Submissions. 1. From its written and oral submissions on the appeal, the Builder's grounds of appeal can be, more specifically, summarised as follows: 1. As to the structural posts issue, the Tribunal erred in not making a work order for the solution agreed upon by both parties' engineering experts in their evidence, which solution did not involve replacement of the posts. 2. As to the tiling issue, the findings by the Tribunal to the effect that the Builder did not clarify with the Owners the fall issue and its ponding consequence, and discuss options with them, were wrong and were based upon untruthful evidence from Mrs Marr as demonstrated by new evidence that was not presented to the Tribunal at first instance. The new evidence consisted of various emails, an affidavit from the tiler, David Froude, dated 10 April 2019 and a statement from James Kemp dated 13 April 2019 all of which we marked for identification. 3. An additional ground in respect of the tiling issue was that the Tribunal erred in failing to find that whilst the floors may not have had the recommended fall, they do adequately drain and therefore comply with the relevant standard. In this regard, the Owners have not put on any evidence to suggest there is ponding on the floor after use or after water is splashed on the floor. The right of appeal 1. The Builder has a right of appeal on any question of law and otherwise with the leave of the Appeal Panel: s 80(2)(b) of the NCAT Act. 2. As to leave to appeal, because this is an appeal from the Consumer and Commercial Division of the Tribunal, cl 12 of Schedule 4 of the NCAT Act is applicable. That clause provides: 12 Limitations on internal appeals against Division decisions (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Submissions on appeal and consideration (a) The structural posts issue – item 15 1. The Builder complained that the Tribunal did not follow the joint opinion of the engineering experts, given in the course of concurrent evidence on the first day of the hearing, to the effect that defective work in relation to the six structural posts supporting decking could be rectified by a particular method that did not involve replacement of the posts. In this connection, the Builder submitted that the Tribunal appears to have acted upon the opinion of the Owners' building expert, rather than the joint engineering opinion. 2. However, as Mr Kemp from the Builder came to accept in oral submissions on the appeal, on the final day of the hearing at first instance, during which the parties made their submissions, the solicitor for the Builder handed up written submissions making it clear that in respect of the structural posts issue, the Builder agreed to replace the posts. 3. This position was set out in paragraph 34 of those submissions in which it was stated that the "following items are agreed to be completed/rectified by the Builder". One of those items was Item 15 which began "The structural posts provided are not compliant". As to this it was said: Although this is disputed, the Builder agrees to replace the posts. 1. In these circumstances, it is impossible for the Appeal Panel to find that the Tribunal erred in making the order that it did in respect of item 15 or that the Builder may have suffered a substantial miscarriage of justice, as required by cl 12 of Schedule 4 (referred to above). (b) The tiling issue – items 31 and 32 1. As to the tiling issue, the Builder's most prominent ground of appeal was based upon the new evidence. 2. The Builder's submissions about the new evidence included: 1. The evidence showed that Mrs Marr was not correct in saying that she gave a list of tiles for the bathrooms in varying sizes to the Builder and left it to the Builder to select which to choose from. In this regard, the Builder referred to Mrs Marr's oral evidence to this effect in the sound recording of the hearing which evidence contrasted with some of the new email evidence, principally, the email from Mrs Marr dated 2 December 2015 which gave the Builder a one size option which was the 30cm x 60cm size. 2. Various emails amongst the new evidence showed that Mrs Marr selected the tiles and that there were ongoing emails and oral discussions between the Builder, the tiler and Mrs Marr about the tiling before the tiling work was started. 3. The new evidence, including the affidavit of Mr Froude and statement of Mr Kemp, demonstrated that there was oral discussion between Mrs Marr, James Kemp and the tiler regarding the fall of the sand and cement bed in respect of the tiles and that Mrs Marr was advised that cuts in the tiles would achieve a better fall but Mrs Marr wanted the fall to be aesthetically pleasing rather than practical. 1. In its written submissions the Builder did not address the requirement in cl 12 that the new evidence be evidence that was not reasonably available at the time that the proceedings under appeal were being dealt with. We raised this issue with Mr Kemp at the hearing of the appeal. 2. This is a threshold problem for the Builder on the appeal, to which we will return after we have dealt with the nature of the new evidence. 3. The Owners' submissions included: 1. The Builder had not established that the new evidence was not reasonably available at the time of the hearing at first instance. 2. In any event, the new evidence was not "significant" new evidence because none of it showed that there was a discussion with Mrs Marr in which she was warned about inadequacy of the fall from the use of the larger tiles in the bathroom. 3. There was no basis for the submission that the evidence of Mrs Marr was untruthful and should be rejected. If anything, the fresh evidence relied upon by the Builder was consistent with the evidence given by Mrs Marr. 1. In support of these submissions, Mr Davis, Counsel for the Owners, took the Appeal Panel to relevant parts of a transcript of the cross-examination of Mrs Marr which was annexed to the Owners' written submissions. 2. Importantly, that transcript revealed: 1. When asked whether the tiler had talked to her about there being a lack of fall and that he might not be able to achieve the appropriate fall using those tiles, she answered no (at line 2383). 2. When it was put to Mrs Marr that Mr Kemp discussed the lack of fall with her and told her that the size of the tiles she was using may not be able to achieve an adequate fall, she answered that he did not have that discussion with her (at line 2388). 1. The transcript also revealed evidence from Mrs Marr in cross-examination to the effect that she did not select the tiles, but rather gave a list of tiles to the Builder with varying sizes, namely at 30cm x 30cm and a 30cm x 60cm option and asked the Builder which would be better and the Builder purchased the tiles without discussion (at lines 2315-2330). 2. The transcript also discloses that whilst Mrs Marr gave evidence revealing that she had some discussions with the tiler about the tiles, she denied that the tiler had talked to her about cutting the tiles for the bathroom diagonally (at lines 2349-2352). 3. Mr Davis submitted that what was important on the facts was not who selected the tiles, but whether the Owners were warned about the fall problem and options to deal with the problem discussed with them. 4. We agree with that analysis. We also agree that the new evidence falls short of revealing evidence that the Owners were given a sufficient warning about a lack of fall in using the large tiles and options to remedy discussed with them. 5. We make the following observations about the new evidence: 1. Mr Froude says in his affidavit that a discussion took place with Mrs Marr to confirm the "format" in which the tiles were going to be laid in the main bathroom upstairs. Whilst not entirely clear, the terms of his affidavit suggest that the conversation occurred in the course of a discussion between himself, Mrs Marr and Mr Kemp about the tiling. 2. Mr Froude says that he explained to Mrs Marr, as he does every client using large tiles, that to achieve appropriate falls the tiles would have to be cut on the diagonal. Mr Froude says that he explained that it could be done without diagonal cutting and would cause lipping on certain edges of the tiles. Mr Froude does not say anything about what Mrs Marr said in response. Mr Froude does not say that he made it clear that the fall would or may be inadequate or less than the standard giving rise to the risk of ponding issues. 3. Mr Kemp says in his statement that he can confirm there were discussions with David Froude and Mrs Marr in relation to the upstairs bathroom regarding the "format" in which the tiles would be laid. He says that he can confirm that he explained to Mrs Marr that using larger tiles will affect the fall and the tiles would need to be cut to achieve appropriate fall. Mr Kemp does not expressly say that he was a party to these discussions or otherwise identify the basis upon which he says he can confirm these matters. As with Mr Froude's affidavit, he does not say what Mrs Marr's response was to this information, nor does his evidence amount to there having been a clear explanation to Mrs Marr of the problem and its potential consequences. 4. The email evidence is inconsistent with part of Mrs Marr's evidence in cross-examination because they indicate that the Owners selected the tiles they wanted to, and probably discussed with, at least, the tiler the design for the layout of the tiling. However, this evidence, whilst inconsistent with aspects of Mrs Marr's oral evidence, does not address the important matter of a proper warning about the fall problem. 1. For these reasons, had it been necessary to do so, we would not have been inclined to conclude that the Builder may have suffered a substantial miscarriage of justice because of "significant" new evidence. 2. However, as already mentioned, the threshold problem for the Builder on the appeal was that there is no basis upon which we could conclude that any of the new evidence was not reasonably available at the time of the hearing at first instance. 3. The emails consist of emails passing between the Builder and the Owners over the period from 12 November 2015 to 1 April 2016. The hearing at first instance took place on dates in July and August 2018. There was no evidence or, indeed, any submission from the Builder in support of the position that such evidence was not reasonably available at the hearing. 4. The same applies to the affidavit of David Froude and the statement from James Kemp. Mr Kemp gave oral evidence immediately after the completion of Mrs Marr's cross-examination but despite the questions and answers in cross-examination of Mrs Marr on the topic (referred to above) no evidence was called from Mr Kemp concerning a discussion with Mrs Marr about inadequate fall. Nor was Mr Froude called by the Builder to give evidence contradicting the evidence Mrs Marr had given in cross-examination. No request was made by the Builder's solicitor, who appeared at the hearing at first instance, for an opportunity to call such evidence from Mr Froude. There was no suggestion that Mr Froude was unavailable to give such evidence. 5. It should also be mentioned that it was clear from the evidence of the expert witnesses referred to in the Tribunal's reasons that any discussion about the fall problem between the Builder or tiler and the Owners would be an important issue in the case, if it was said to have occurred. Accordingly, the Builder ought to have assembled all relevant evidence about any such discussion and presented it to the hearing at first instance. 6. As to the other ground of appeal concerning the tiling issue, in our opinion, this ground should be rejected for the following reasons: 1. The Builder asserts in its written submissions on appeal that the bathrooms adequately drain. However, such an assertion appears to be inconsistent with the conclusion of the Tribunal at [108], to which we have referred above. The Builder did not identify any evidence from which it asserts the Tribunal erred by not finding that the bathrooms adequately drain. 2. The Builder's contention that the Owners did not put on any evidence to suggest there is ponding is inconsistent with references to the evidence from the experts in the Tribunal's reasons in which the Tribunal refers to the evidence from the Owners' expert that the lack of fall "caused unacceptable ponding" (at [90]) and the evidence from the Builder's expert that he did not observe "unacceptable" ponding (at [97]). 3. In any event, as we read the reasons, the Tribunal justified the inclusion of items 31 and 32 in the work order on two separate grounds only one of which appears to have been based upon a conclusion that there was sufficient evidence that the lack of fall actually caused a problem: see at [107] and [108]. On the first ground, the Tribunal found it sufficient that there had been non-compliance with the recommended fall in the Australian Standard and there was a conflict between the experts as to the assessment of the physical evidence. Remaining issue 1. On appeal, the Builder made submissions about being ready, willing and able to come back to the site to complete the building work. In this regard, the Builder sought to rely upon some emails attached to its written submissions marked "C", "D" and "E". 2. However, it was clarified with Mr Kemp at the hearing of the appeal that the Builder did not need the Appeal Panel to consider this additional material in circumstances where it was common ground between the parties that the building contract was still on foot and there was no dispute between the parties as to whether the Builder was ready, willing and able to complete the contract. Orders 1. For these reasons, we make the following orders: 1. Extend the time for lodgement of the appeal to 7 January 2019. 2. Leave to appeal is refused. 3. Dismiss the appeal. 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: 09 May 2019