AGY Global Wealth Pty Ltd v Gillies [2023] NSWCATAP 85

Catchwords: APPEAL – Notice of Appeal – filed outside of the prescribed time – whether extension of time should be granted – no sound recording or transcript of the Tribunal’s oral reasons for decision filed - extension of time refused . Civil and Administrative Tribunal New South Wales Medium Neutral Citation: AGY Global Wealth Pty Ltd v Gillies [2023] NSWCATAP 85 Hearing dates: 2 March 2023 Date of orders: 27 March 2023 Decision date: 27 March 2023 Jurisdiction: Appeal Panel Before: S Thode, Principal Member M Deane, Senior Member Decision: 1. The application for an extension of time to lodge the Notice of Appeal is refused. 2. Appeal dismissed. Catchwords: APPEAL – Notice of Appeal – filed outside of the prescribed time – whether extension of time should be granted – no sound recording or transcript of the Tribunal’s oral reasons for decision filed - extension of time refused . Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281 Kelly v Szatow [2020] NSWSC 407 Texts Cited: None cited Category: Principal judgment Parties: AGY Global Wealth Pty Ltd (Appellant) Belen Gillies (Respondent) Representation: Husseini Solicitors Wiggins Legal (Respondent) File Number(s): 2023/00007933 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Commercial and Consumer Division Citation: N/A Date of Decision: 07 October 2022 Before: J Searson, General Member File Number(s): HB 22/32700 REASONS FOR DECISION Background The appeal concerns proceedings arising out of a contract to do residential building work , namely the installation of a 10 Kw solar panel system with 36 solar panels and an inverter at a property in Rockdale, NSW. The contract was entered into on or about 18 December 2018 between the own er Belen Alina Gillies , and the builder Skylight Energy trading as AGY Global Wealth Pty Ltd for a contract price of $9000 . For convenience we shall refer to the parties as the owner and the builder respectively. The installation was completed in or around 18 December 2018 and the owner noted about one year later that the system was not functioning correctly. On 13 December 2020 the owner commenced proceedings in the Consumer and Commercial Division of the Tribunal claiming an amount of $10,000, being the replacement cost of the entire system, plus out of pocket expenses . The matter was originally heard on 23 April 2021 and orders were made in the owner ’ s favour on 7 July 2021. The builder was ordered to replace the defective inverter and the owner was given leave to Renew the proceedings, in the event that the order is not carried out or carried out defectively (the Work Order ) . The builder sought and was granted an extension of time to comply with the Work Order. The builder failed to comply with the extended Work Order and on 20 July 2022 the owner commenced Renewal proceedings HB 22/32700 seeking an order for payment of the sum of $10,000. The Renewal proceedings were heard on 7 October 2022 and orders were made in favour of the owner . The builder did not attend the hearing and was ordered to pay $10,835 for the cost of replacement and rectification of the system . The Tribunal ’ s orders note that o ral r easons were given at the beginning of the hearing. The builder filed a Set Aside application HB 22/46246 on the basis that a medical certificate that he claimed to have submitted excusing his absence from the hearing on 7 October 2022 had not been considered by the Tribunal. O n 21 November 202 2 the Tribunal dismissed the builder ’ s set aside application and lifted the stay of the orders. The builder filed a Notice of Appeal dated 9 January 2023. In the Notice of Appeal the builder contend s that the Appeal Panel should set aside the orders made on 7 October 2022 and dismiss the owner ’ s Renewal application. On 25 January 2023 directions were made in the a ppeal proceedings , which included orders for the builder to provide by 8 February 2023 : All the evidence given to the Tribunal at first instance on which it was intended to rely; Any evidence not provided to the T r ibunal at first instance in making the decision under appeal, on which it was intended to seek leave to rely; The builder ’ s written submissions in support of the appeal; and As oral reasons were given a typed transcript of the relevant parts of the hearing, together with the sound recording of the entire hearing . On 27 February 2023 the builder lodged submissions which did not include a sound recording or transcript of the oral reasons. The matter was heard by the Appeal Panel on 2 March 2023. At that hearing, the builder was represented by c ounsel, who clarified that it was the money order of 7 October 2022 for which review was being sought, not the decision to dismiss the set aside application. Contrary to the contentions made in the Notice of Appeal, c ounsel for the builder acknowledged that the Notice of Appeal had been lodged out of time and sought an extension of time in which to lodge the Notice of Appeal . The owner opposed the application for an extension of time. Time limits and extensions of time in the Appeal Panel The decision of the Tribunal below is an internally appealable decision and an appeal can be made from that decision as of right on a question of law, or with the leave of the Appeal Panel on any other grounds: see Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(1) and (2)(b) and see Jackson v NSW Land and Housing Corporation [2015] NSWCATAP 281 at [14]-[15]. Where leave to appeal is sought and the decision the subject of appeal is a decision of the Tribunal in the Consumer and Commercial Division, the Appeal Panel may only grant leave to appeal where it 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). (see NCAT Act, Sch 4, cl 12) Clause 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) prescribes the time within which an appeal from an internally appealable decision of the Tribunal is to be lodged, unless time is extended under s 41 of the NCAT Act. In the present case , the prescribed time for lodging an appeal was within 28 days from the day on which the appellant was notified of the decision to be appealed or first given reasons for the decision , whether orally or in writing (whichever is the la ter) : NCAT Rules, cl 25(4)( c ) and 25(4A). The orders appealed against were published on 7 October 2022 and the Notice of Appeal was not lodged until 9 January 2023. The appeal was therefore lodged more than three months out of time. Extension of time Section 41 of the NCAT Act gives the Tribunal a wide discretion to “ extend the period of time for doing anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation ” . The general principles which apply in considering whether leave to extend time to appeal should be granted were considered in Kelly v Szatow [2020] NSWSC 407 at [31]-[32]. Relevant considerations include: the length of the delay and any associated reasons for such, the strength of the plaintiff's case and consideration of whether the defendants would be prejudiced by a granting of the application: see Jackamarra v Krakouer (1998) 195 CLR 516 at [3]-[5]; Tomko v Palasty (No 2) [2007] NSWCA 369 (Tomko) at [55]. The relevant considerations for an extension of time application in the Appeal Panel were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]: 22. The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include: (1)The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38]; (2)The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7]; (3)Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a)The length of the delay; (b)The reason for the delay; (c)The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d)The extent of any prejudice suffered by the respondent (to the appeal), - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and (4)It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59]. Length of delay and reason for delay Oral reasons for the decision under appeal were given to the parties on 7 October 2022. Although the Notice of Appeal stated that the appeal documents had been sent on 28 December 2022, the Notice of Appeal was not stamped as received by the Appeal Panel Registry until 9 January 2023. The Notice of Appeal was received significantly later than 28 days after reasons had been given. At the hearing, c ounsel for the builder submitted that the builder was a small business , the director was involved in a number of cases and had found it difficult to proceed. Counsel for the builder acknowledged that this was probably not a sufficient excuse to commence proceedings significantly out of time and the builder should have engaged legal representation but there had been financial constraints . These submissions were made “ from the bar table ” and no evidence was filed to support the contention. The builder ’ s circumstances are not unu sual. All appellants are subject to the same requirements in lodging a Notice of Appeal in time and the builder has not made out any particular hardship. We are of the view that t he reasons for the delay are not compelling. The appellant’s prospects for success The onus is on the builder to show a reasonably arguable case if time is extended to lodge the appeal ; that is , to show a reasonably arguable case that the Tribunal erred on a question of in law or that the builder suffered a substantial miscarriage of justice on the grounds prescribed in cl 12 of Sch 4 of the NCAT Act. The Tribunal gave oral reasons at the conclusion of the hearing on 7 October 2022 to award a money order . The builder did not apply for written reasons and did not provide us with a sound recording or transcript of the oral reasons. Therefore, we are unaware what findings the Tribunal made or the reasons the Tribunal gave for its decision. In the written submissions, the builder contended that : The award of $10835 was not fair and equitable because the owner ’ s evidence had not justified the additional costs . The total cost of the goods supplied and installed by the builder was less than the amount claimed by the owner , and the cost of a brand new replacement inverter was only $2493.00 The claim was a warranty claim and not the builder ’ s duty to cover; The owner had not given the builder access to install the new inverter; The owner had not returned the products and the builder had been subjected to a miscarriage of justice due to a current and potential financial loss from the excessive cost of orders and products and opportunity costs for future projects . Counsel for the builder contended that there had been both a miscarriage of justice and that the decision made by the Tribunal was not fair and equitable . Counsel for the builder acknowledged that the builder had not provided a transcript or recording of the oral reasons, but submitted that the decision on its face was unfair and had an element of miscarriage of justice . It was further submitted that the decision was unfair and unjust because the Tribunal had failed to consider s 48MA to the Home Building Act 19 89 and no order had been made for the return of the faulty equipment to the builder , resulting in unjust enrichment to the owner . Whether the Tribunal did take s 48MA into account or whether it was considered relevant on renewal is unclear in circumstances where the Appeal Panel has not been provided with a transcript or sound recording of the findings and reasons on which the builder is seeking to rely in order to establish some demonstrable error . The failure to provide a transcript or sound recording of the reasons on which the builder is seeking to rely is also contrary to the directions made on 25 January 2023 . Nor did the builder request written reasons for decision, which it was entitled to do: NCAT Act, s 62. Hence, in the absence of the builder filing and serving a copy of the sound recording of the hearing or a transcript of the oral reasons , we are unable to identify any error in the decision of the Tribunal below . On this basis, there can be no real prospect of the builder succeeding in the appeal or in the application for leave to appeal. Prejudice Counsel for the builder contended that the owner would not be disadvantaged by the extension of time. In spite of the finding above that the builder has no real prospect of success, it is also worth noting the owner ’ s submissions regarding prejudice if the extension of time were granted. In the Reply to Appeal, the owner noted that the matter had been determined by the Tribunal and the owner to the appeal had to lodge two renewal applications as a result of the builder ’ s failure to comply with the orders. The owner submitted that the builder was using the appeals process as a means of de lay. The owner submitted that the builder had already had two opportunities to put its case prior to the hearing on 7 October 2022, being the date of the original hearing on 23 July 2021 , following which written reasons and a work order were delivered on 7 July 2021 . After that decision was made, renewal proceedings were commenced on 20 December 2021 and the work order was confirmed on 11 March 2022 . The builder failed to comply with the work order and the matter was relisted on 18 August 2022 following which a money order was made at the hearing on 7 October 2022 at which the director of the builder failed to appear. The owner further noted that the builder appeared to have abandoned the appeal by failing to comply with the orders of 25 January 2023 and failing to provide a transcript . (The builder subsequently provided submissions on 27 February 2023). At the hearing the owner submitted that she had already relied on the money order and bought a new inverter. In our view, there is considerable prejudice to the owner if time were extended. The owner was successful in her claim , both on the work order and the money order on renewal. Two years after filing the initial application, she has now relied on the money order and replaced the faulty equipment and would be significantly disadvantaged if the extension of time were granted . Conclusion on extension of time The builder has not made out compelling reasons for the delay in filing the Notice of Appeal and has not shown a reasonably arguable case that that the appeal might succeed. Without a recording or transcript of the oral reasons, we are unable to ascertain what the reasons were for making the order that the builder seeks to overturn. As a result, the builder is unable to demonstrate that those reasons raise a question of law upon which there would be a right of appeal or a substantial miscarriage of justice for which leave to appeal could be sought. Additionally, we are satisfied that the owner would suffer considerable prejudice were an extension of time in which to appeal granted. For the reasons set out above, we find that it is not appropriate to make an order under s 41 of the NCAT Act granting an extension of time for the builder to lodge the Notice of Appeal . Conclusion and Orders As we have refused the builder ’ s application for an extension of time within which to lodge the Notice of Appeal, this also disposes of the appeal and application for leave to appeal. We make the following orders: The application for an extension of time to lodge the Notice of Appeal is refused . Appeal 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: 27 March 2023