Di Virgilio v McCleary
[2012] WASC 437
•16 NOVEMBER 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: DI VIRGILIO -v- McCLEARY [2012] WASC 437
CORAM: HALL J
HEARD: 11 SEPTEMBER 2012
DELIVERED : 16 NOVEMBER 2012
FILE NO/S: GDA 5 of 2012
BETWEEN: LUIGI DI VIRGILIO
Appellant
AND
NEIL McCLEARY
TRACEY McCLEARY
Respondents
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :MR B DE VILLERS (SENIOR MEMBER)
File No :CC 1905 of 2011
Catchwords:
Appeal from State Administrative Tribunal (SAT) - Application to SAT for review of decision of Building Disputes Tribunal - Whether extension of time required - Whether refusal of extension of time by SAT was in error - Whether SAT considered all relevant factors
Legislation:
Builders Registration Act 1935 (WA), s 40, s 41
State Administrative Tribunal Act 2004 (WA), s 17, s 20
State Administrative Tribunal Rules 2004 (WA), r 9, r 10
Result:
Leave refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms K J Levy
Respondents : Mr G E Taylor
Solicitors:
Appellant: Kitto & Kitto
Respondents : Park Linfoot Legal Solutions
Case(s) referred to in judgment(s):
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479
Gerando v Gerando (1997) 18 WAR 450
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 7 ALD 315
Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516
O'Connor and The Town of Victoria Park [2005] WASAT 161
Re DHLD and Executive Director, Social Security Appeals Tribunal (2010) 115 ALD 566;[2010] AATA 377
HALL J:
Introduction
This is an application for leave to appeal from a decision of the State Administrative Tribunal (SAT) made on 20 December 2011. The decision of the SAT was to refuse an application to extend time for the appellant to seek a review of a decision of the Building Disputes Tribunal (BDT) made on 14 December 2010. An extension was required because the application for review in the SAT was filed on 1 December 2011, nearly 11 months out of time.
An appeal to this court from a decision of the nature described is only available both with leave and on a question of law: s 105 State Administrative Tribunal Act 2004 (WA) (SAT Act). In order to determine whether leave should be granted it will be necessary to consider the merits of the grounds of appeal.
The appellant asserts that in dealing with the application to extend time the SAT failed to apply the appropriate principles, failed to take into account relevant considerations and made a finding that was not supported by the evidence. I will refer to the grounds of appeal in more detail later in these reasons. In order to understand the claims made by the appellant and the decision made by SAT it will be necessary to set out the background of the dispute between the parties.
Background
In 2006 the respondents, Mr and Mrs McCleary, entered into discussions with the appellant regarding the building of a house in Bicton. On 1 July 2006 a contract was signed to build the house for a total contract price of $1,240,000. The contract named the builder as 'Instyle Residence' and gave an address for that entity in Leederville and a builder's registration number.
It is not disputed that all of the respondents' dealings in regards to the building of the house were with the appellant. It later transpired that Instyle Residence was a trading name used by a building company, Frayson Pty Ltd. The builder's registration number included on the contract was that of a director of Frayson Pty Ltd.
At no time was the appellant a registered builder, rather he was a designer. He had worked on some building projects with Frayson Pty Ltd and knew the director of that company who was a registered builder. In early 2006 the appellant had entered into an arrangement with that company in respect of the respondents' house. The respondents were not parties to that arrangement.
The arrangement was that the appellant would nominate Frayson Pty Ltd as the registered builder on a building licence application for the house on condition that the value of the contract did not exceed $400,000. Frayson Pty Ltd applied for indemnity insurance to this value. However, Frayson Pty Ltd never entered into a building contract with the respondents and was never appointed the builder for the project. The reason for this appears to be that the cost of the project exceeded the agreed amount.
A building licence was granted and practical completion of the house occurred in early 2009. On 9 June 2009 an inspection by the local authority determined that the house was not compliant with the approved plans. There were also a number of defects that required rectification.
On 17 May 2010 the respondents filed a complaint with the BDT in regard to the defective work. The respondents completed the application form themselves, though they later retained legal advisers. The complaint form referred to both 'Lui Di Virgilio' and 'Kilbride'. The reference to Kilbride is said by the appellant to have some significance.
It is not disputed that Kilbride is a company connected to the appellant. He is the sole director of that company. It trades under the business name 'Lui Di Virgilio Designs'. Kilbride is not, and has never been, a registered builder.
During the course of the building work the respondents received invoices from contractors that were addressed to 'Lui Di Virgilio'. They also received some invoices which referred to the bank account of Kilbride Nominees Pty Ltd as the account to which payment was to be made. They assumed that this was a company connected to the appellant. However, they deny ever entering into any contract with that company.
Notice of the proceedings in the BDT was provided to Frayson Pty Ltd, no doubt because its builder registration number appeared on the contract. On 14 December 2010 the BDT conducted a preliminary hearing to determine whether Frayson Pty Ltd should be joined as a respondent in the proceedings.
Evidence was given by an officer of the relevant local authority that in discussions prior to the building commencing the appellant had stated that Frayson Pty Ltd was to be the builder. During the course of the proceedings in the BDT the Chairperson said that the issue to be determined was who undertook the building work. In the course of discussions there was a reference to Kilbride and why it was not registered for GST. However, there was no suggestion from anybody that Kilbride was in fact the entity responsible for the building. In fact, the appellant was asked whether he undertook the building work as an unregistered builder and responded by saying, 'Correct'.
Later in the hearing in the BDT the Chairperson said:
Mr Di Virgilio, the consequences of your admission, if the Tribunal were to accept it and find that you're the person who carried out the building work is that you're the person who's liable for any faulty or unsatisfactory work. Or any work that's not proper and workmanlike for the purposes of s 12(a) and s 12(a)(i). You understand that do you?
DI VIRGILIO, MR: I do.
The Chairperson then explained that once a determination was made by the Tribunal as to who undertook the work an assessment would then be made as to the amount of money required to remedy the defects.
At the conclusion of the hearing of 14 December 2010 the BDT made a finding that the person who carried out the building work for the purposes of s 12(a) of the Builders Registration Act 1935 (WA) was the appellant. That finding was made on the basis of the admission made by the appellant in those proceedings. A finding was made that Frayson Pty Ltd had not carried out any of the work. Accordingly, thereafter Frayson Pty Ltd did not participate further in the proceedings in the BDT.
The order made by the BDT was incorporated into a letter sent to the parties on 15 December 2010. The letter set out the orders made by the BDT on 14 December 2010, including that the appellant was found to be the person who carried out the building work. The letter also contained a notation that there was an enclosure referred to as an 'Important Notice'. There is a requirement that a person who is the subject of a reviewable decision is advised of their right to request written reasons: s 40 Builders Registration Act. There is also a requirement that the person be given written notice of their right to seek a review of the decision by the SAT: s 20 SAT Act. The notice referred to in the letter is a standard printed document that refers to these rights. The practice of the BDT is to attach a copy of the notice to any notification of orders made by the BDT.
The appellant later claimed that the letter of 15 December 2010 from the BDT did not include such a notice and that he was unaware of his right to seek a review of the decision. It should be noted that he does not deny that he did receive a copy of the notice when he received earlier correspondence about programming orders on 29 September 2010. His claim of not having received the notice was not raised until 26 September 2011. I will refer to the circumstances in which that occurred later.
The proceedings in the BDT continued. An inspection of the site occurred on 18 January 2011 at which the appellant and respondents were present. A hearing was then conducted in the BDT on 26 May 2011 as to the nature of the defects and the quantum of any rectification costs. The appellant attended this hearing and participated in it. He did not suggest that he was not the appropriate party to the proceedings.
On 27 May 2011 the BDT issued an order to pay against the appellant in the amount of $174,741. The appellant sought a review of that decision in the SAT by an application lodged on 12 July 2011. In respect of those proceedings the appellant was represented by a legal firm. I will refer to this as the first review.
On 26 September 2011 the appellant's solicitors wrote to the BDT requesting written reasons for the decision of 14 December 2010. Such a request must be made within 14 days of the decision unless an extension is granted. By the time the request was made the Deputy Chairperson who had presided on 14 December 2010 was no longer a member of the BDT. The delay in making the request was said to be because the appellant had not received the required notice. This claim was considered, and rejected, by the BDT. In reasons published on 3 November 2011 refusing the request the BDT (constituted by a different Deputy Chairperson) stated, 'An examination of the file by me has shown that this notice is attached to the copy of the orders dated 15 December 2010, indicating that it was sent to the parties'.
On 1 December 2011 the appellant applied to the SAT for an extension of time to apply for a review of the decision made on 14 December 2010 by the BDT. By that application the appellant sought to argue that the BDT had made an error in finding that he was the builder. He asserted that the builder was in fact Kilbride. I will refer to this as the second review.
The first review proceedings in respect of the quantum decision came on for hearing in the SAT on 12 December 2011. On that occasion leave was granted for some items of the work to be reviewed. Further information in that regard was required and that review was then adjourned.
On 20 December 2011 the application in the second review seeking an extension of time came on for hearing in the SAT. It is the decision to refuse an extension of time made on that day that is the subject of this appeal.
Reasons of the SAT of 20 December 2011
The SAT delivered oral reasons on 20 December 2011. The transcript of those reasons was available on this appeal. In those reasons the SAT identified the key contentions of the appellant in support of an extension of time as follows:
(a)He was self-represented at the 14 December 2010 hearing of the BDT and although he often referred to himself in person he was not the registered builder. The BDT should not have made orders against him as respondent since he was acting as a director of a company, Kilbride Nominees Pty Ltd.
(b)The BDT failed to notify him that he had a right to seek a review of the decision dated 14 December 2010 or that he was entitled to receive written reasons for the decision provided he sought such written reasons within 14 days.
(c)The law firm, Lavan Legal, who represented him during the review of the order to pay proceedings, did not advise him in regard to the decision of the BDT dated 14 December 2010 and that it could be reviewed.
(d)The law firm, Kitto & Kitto, who represents him in these proceedings, advised him that he had a right to review the decision of the BDT dated 14 December 2010 provided that an extension of time is granted by the Tribunal.
(e)If the decision of the BDT were to remain, he would suffer great prejudice since legal proceedings have commenced to enforce the order to pay and he may lose his family residence as a result thereof.
(f)If all these factors are balanced the interests of the applicant must prevail and an extension of time should be granted.
The reasons stated that the principal considerations relevant to the exercise of discretion as to whether an extension of time should be granted had been considered in a number of previous matters. Reference was made to the decision of Barker J in the matter of O'Connor and The Town of Victoria Park [2005] WASAT 161 [38] ‑ [40]. Reference was also made to a decision of the Commonwealth Administrative Appeals Tribunal in Re DHLD and Executive Director, Social Security Appeals Tribunal (2010) 115 ALD 566;[2010] AATA 377.
The Tribunal then set out nine reasons for concluding that the application must be dismissed. These can be summarised as follows:
1.That bearing in mind the statutory period within which to bring an appeal is 28 days the delay in this case was 'quite extraordinary'. Whilst the appellant was self‑represented on 14 December 2010 he had had legal representation 'for a substantial period' since that time. The time limit is intended to bring certainty and finality and to enable the parties to act on the basis of that finality.
2.The failure to comply with a requirement to inform the parties of their right to seek a review does not automatically give rise to a right to an extension of time. In any event, on 3 November 2011 the BDT had stated that it was the standard practice to inform parties of their review rights and that a copy of the orders on the BDT's file was attached to a copy of the relevant notice, which the BDT stated had been sent to the appellant.
3.The BDT did not fail to address the relevant question on 14 December 2010. It dealt with the question of who was responsible for building the respondents' house. The decision made in that regard was not questioned in any of the subsequent proceedings.
4.That it was unlikely that the appellant, being a business person, would be unaware of his review rights. The appellant's claims in that regard lacked credibility, particularly having regard to the fact that he was legally represented in the first review proceedings seeking a review of the quantum.
5.The appellant had commenced proceedings for a review of the quantum and directions hearings in regards to those proceedings had first occurred in July 2011. Notwithstanding that he was legally represented in those proceedings, there had been no earlier challenge to the finding that had been made in December 2010 that he was the builder and liable to pay.
6.The lawyer representing the appellant on the extension of time application had been first instructed in late August 2011. That lawyer had advised the appellant in September 2011 that he had a right to review the decision of 14 December 2010, subject to the grant of an extension of time. Notwithstanding this an application had not been lodged until 1 December 2011.
7.The BDT had observed that the appellant was a business person operating the firm Lui Di Virgilio Designs and could not be said to be a layperson. He participated in later proceedings in the BDT without raising objection to being regarded as the registered builder of the project.
8.The review proceedings on the quantum had been concluded and the decision reserved. That matter had been before the SAT since August 2011. No issue as to the appellant's liability as the builder was raised in those proceedings.
9.Any urgency in relation to the extension of time had arisen, at least in part, by the failure of the appellant to comply with the order to pay. This was relevant in assessing the suggestion that the appellant was more at risk of prejudice than the respondents.
There is a degree of overlap and repetition in those points, however the essence of the reasoning is clear: the delay was long, no adequate explanation for it had been provided, the proposed review was not one with reasonable prospects of success and prejudice to the appellant did not justify an extension.
Grounds of appeal
The grounds of appeal are as follows:
1.The Tribunal erred in law in that having properly identified the decision of O'Connor and Town of Victoria Park [2005] WASAT 161 as setting out the criteria and principles to be applied in considering an application for an extension of time, it failed to apply such criteria and principles. Specifically, the four factors identified as the matters for consideration in the exercise of discretion as to whether to extend time, being:
(a)the length of the delay;
(b)the reasons for the delay;
(c)whether the applicant has an arguable case; and
(d)the extent of any prejudice.
2.The Tribunal further erred in law:
(a)when considering the length of the delay, by failing to have regard to the failure of the Building Disputes Tribunal to comply with its statutory obligation to notify the appellant of his right to a review of the BDT decision;
(b)when considering the reasons for the delay by concluding that it is unlikely and improbable that a 'business person' would not be aware of a right to appeal or seek legal advice. The Tribunal further erred in law by finding that the appellant is a business person;
(c)by failing to have any, or any proper, regard to whether the appellant had an arguable case for review of the Building Disputes Tribunal decision by the State Administrative Tribunal; and
(d)when considering the extent of the prejudice, by failing to consider the ongoing prejudice arising from an incorrect finding on record as to the party who in fact is responsible for constructing the respondent's premises.
Both parties filed affidavits setting out their accounts of what had occurred and annexing documents. Objections were taken to parts of the affidavits. It is not necessary to rule on those objections as I have not found it necessary to rely on those parts of the affidavits. I have placed most reliance upon the materials that were before the Tribunal and have been provided on this appeal.
The relevant statutory provisions
An application for review of the decision of the BDT of 14 December 2010 could be made to the SAT with leave of the SAT: s 41 Builders Registration Act. Such an application is within the review jurisdiction of the SAT: s 17 SAT Act.
Rule 9 of the State Administrative Tribunal Rules provides for a time limit for the making of applications in the review jurisdiction. Rule 9 provides as follows:
Time limit for applications: review jurisdiction
Subject to these rules, an application to the Tribunal under its review jurisdiction must be made within 28 days of -
(a)the day on which the decision‑maker gives a notice under the Act section 20(1);
(b)the day on which the decision‑maker makes the decision under the Act section 20(5); or
(c)if, under the Act section 3(3)(a), the Act applies as if a person had made a decision, the day on which any provision of the enabling Act as to when the decision is taken to have been made has effect.
The power of the SAT to extend time is found in r 10 of the State Administrative Tribunal Rules 2004 (WA). Rule 10 provides as follows:
Extension of time limit
(1)The Tribunal, on application by any applicant, referring person or on its own initiative, may extend any time fixed under the Act, an enabling Act or these rules for the commencement of a proceeding.
(2)Under this rule, the Tribunal may extend time even if the time fixed expired before an application for an extension was made or the Tribunal on its own initiative considered extending the time.
The date from which the 28 day time period runs depends on the nature of the decision. Rule 9 refers to three types of decision. The decision in this case did not fall into the second or third categories. Rather it fell into the first category and time would therefore run from when written notice of the decision and the right of review was provided.
Section 20 of the SAT Act provides as follows:
Notice of decision and right to have it reviewed to be given by decision-maker
(1)If this subsection applies to a reviewable decision, the decision‑maker is to give any person who has a right under an enabling Act or section 44(3) to have the decision reviewed by the Tribunal written notice of -
(a)the decision; and
(b)that right.
(2)Subsection (1) applies to any reviewable decision unless -
(a)the decision does not adversely affect the interests of the person who has that right and -
(i)it is a decision not to impose a liability, penalty, or any kind of limitation, on a person; or
(ii)it is made under an enabling Act that establishes several categories of entitlement to a monetary or other benefit, and it determines a person to be in the most favourable of those categories;
or
(b)the decision is prescribed by the regulations for the purposes of this paragraph.
(3)If the persons who have to be given notice under subsection (1) are not readily identifiable, the decision‑maker is to take steps that are reasonable in the circumstances to give the notice.
(4)A contravention of this section does not affect the validity of the decision.
(5)If subsection (1) applies in a case in which a person has failed to make a decision within the time limit for making the decision, the person may, if the enabling Act permits, make the decision instead of giving notice under subsection (1).
In this case the appellant contended that he had received a letter from the BDT notifying him of the decision but that it had not included a notice as to his right of review. If this was right then time had not expired and an extension was not required. However, that contention was dismissed by the BDT in its decision of 3 November 2011. That decision was not subject to challenge. There was an implicit acceptance of that decision in the bringing of an application for an extension of time. It was inconsistent for the appellant to both seek an extension and maintain that he had not received the notice. That inconsistency was not raised by anyone and it must be inferred that the appellant accepted that the BDT had complied with its statutory obligations but that he was, nonetheless, unaware of his review rights because, for some unknown reason, he had not seen the notice.
The SAT treated the issue of whether notice of review rights had been received by the appellant as being a factor relevant to whether an extension of time should be granted. No complaint is made by the appellant in this regard, indeed that is how the appellant's case was presented in the SAT. It was not suggested in the SAT, or on this appeal, that this was a preliminary issue that needed to be determined first in order to establish whether an extension was necessary. I will approach the issues on the same basis.
Merits of the appeal
The power to grant an extension of time to commence proceedings is generally discretionary in nature. The use of the word 'may' in r 9 confirms the existence of a discretion here. Whether the discretion should be exercised in favour of the appellant in any case depends on an assessment of the particular facts and circumstances.
The discretion exists for the sole purpose of enabling a court or tribunal to do justice between the parties. It can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether there would be an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for an extension of time: Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, 459 (McHugh J).
In a passage quoted with approval and applied by Malcolm CJ with whom Kennedy and Franklyn JJ agreed in Gerando v Gerando (1997) 18 WAR 450, 454 Kennedy J held in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198 as follows:
In Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; [1985] 2 All ER 517 at 520, the Court of Appeal accepted that, in relation to an application for an extension of time for appealing, there are four major factors to be considered in the exercise of the discretion which is conferred upon the court. They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent. There may in a particular case be additional factors, but I accept that the foregoing are the major factors in the present case.
In O'Connor and The Town of Victoria Park Barker J noted that the four factors identified by Kennedy J in Esther Investments had been referred to in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 by Brennan CJ and McHugh J. The correctness of those four factors had not been questioned by the High Court. Barker J applied those factors in determining whether an extension of time for a review of a decision of the Town Planning Appeal Tribunal should be granted in O'Connor.
As noted above, in this case the SAT in addition to referring to O'Connor also made reference to a decision of the Administrative Appeals Tribunal in DHLD v The Executive Director of the Social Security Appeals Tribunal. The latter decision made reference to principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; (1984) 7 ALD 315. The SAT summarised those principles as follows:
1.There is no onus of proof upon the applicant for extension of time, though an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied it is proper to do so. The prescribed period of 28 days is not to be ignored.
2.It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained.
3.Action taken by the applicant other than by making an application to the court is relevant in assessing adequacy of the explanations for the delay.
4.Any prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.
5.The mere absence of prejudice is not enough to justify the grant of an extension.
6.The merits of the substantive application are properly to be taken into account in considering whether an extension of time should be granted.
7.Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of the exercise of the court's discretion.
As regards ground 1, the appellant argues that the Tribunal erred by referring to the seven factors referred to in DHLD rather than the four factors referred to in O'Connor. There is an assumption contained in this submission that there is inconsistency between the two sets of factors. However, on examination it is apparent that the two sets of factors are not necessarily addressing exactly the same issues.
The four factors distilled in Esther group together under general headings the types of considerations that will be relevant to the exercise of the discretion. The factors derived from Wilcox J's decision in Hunter Valley Developments Pty Ltd identify other questions such as who bears the onus of establishing that an extension should be granted and whether there are some specific circumstances in which an extension may not be justified. To the extent that they both address relevant considerations there is substantial commonality.
To extract from decisions dealing with the exercise of discretionary judgment a defined list of factors and then seek to interpret the words used as if they were statutory criteria is inappropriate. Neither of the cases referred to were dealing with the particular provision of concern here. Insofar as those cases set out general principles they do not purport to be exhaustive or to limit the possible relevance of other factors. They are a useful guide to the exercise of the discretion, not a set of strict rules.
Whether the factors as summarised in Kennedy J's decision in Esther or as summarised by Wilcox J in Hunter Valley Developments Pty Ltd are utilised it is not apparent that there would be a different outcome. The relevant question is whether the Tribunal took into account all relevant consideration and did not take into account any irrelevant consideration. There is nothing in the SAT's reasoning that would lead to a conclusion that any relevant factors were ignored. Indeed, the reasons for refusing the extension clearly related to issues that fell within the ambit of the factors referred to in Esther.
It cannot be suggested that the SAT failed to consider the length of the delay, the reasons for it, whether the appellant had an arguable case and the extent of any prejudice to the parties. Those factors were all canvassed in the reasons. I am unable to accept that there was any error in the reasoning.
As regards ground 2(a), it is clearly incorrect to state that the SAT failed to have regard to the 'failure of the Building Disputes Tribunal to comply with its statutory obligation to notify the appellant of his right to a review of the BDT decision'. This was a matter specifically referred to by the Tribunal. The SAT did not accept that notice had not been given, in any event it found that the delay was a long one. What can be drawn from this is that the SAT was not satisfied that the appellant was unaware of his rights and that this was a factor which when taken into account with all of the other relevant considerations, did not justify an extension of time.
As regards ground 2(b), the SAT did refer to the appellant as a business person. It is said that this was an error. However, there was ample evidence that the appellant had been engaged in business and a finding in this regard had been made by the BDT. It is also suggested that it was an error to find that it was improbable that a business person would not be aware of a right to appeal.
The relevant passages in this regard are as follows:
There is no need for the Tribunal to make a finding of fact but the Tribunal does not accept that the applicant as a business person was completely oblivious that a decision of a Tribunal may be appealed. Mr Kitto presented a picture of an applicant as being uninformed without any knowledge of legal processes and without an idea that a decision can be appealed. This characterisation of the applicant is not accepted by the Tribunal.
...
The Tribunal finds it most unlikely and improbable that the applicant who is a business person would not be aware of a right to appeal a decision or that he would not need advice from a legal representative to appeal a decision of the BDT. It can be said that even the average person on the street is well aware of the possibility of seeking redress if they disagree with the decision even if they are not aware of the exact technicalities. The Tribunal regularly receives enquiries from self-represented persons who are unhappy with a decision about the process for it to be reviewed or appealed. For the applicant to say he was completely unaware that he could appeal a decision of the BDT is hard to believe and difficult to accept.
...
The lack of credibility of the applicant's explanation is exacerbated by the fact that he was legally represented in the proceedings before the Tribunal in which a review of the quantum was sought and neither he nor his legal representatives raised the question regarding identity. It is entirely inexplicable that the applicant is such a victim of circumstances as is put by Mr Kitto that he would participate in a lengthy legal process to seek a review of an order to pay without raising with his legal team the possibility of mistaken identify.
These comments need to be understood in the context of an affidavit filed by the appellant with the SAT. He was also called to give evidence in respect of the matter at the hearing of the extension of time application. He claimed in his affidavit that he had not been aware of his review rights. His evidence in that regard was properly something to be taken into account by the SAT. It was open to consider whether that evidence was credible having regard to all of the circumstances. The SAT found that it was not and that was a finding that was reasonably open. Accordingly, in my view, the SAT was not seeking to presume from the fact that the appellant was a businessman that he must have known of his legal rights. Rather, it was assessing whether the appellant's claims to not know were credible in all the circumstances.
In any event, the factors weighing against an extension of time were so numerous and weighty that no other decision other than to refuse an extension could properly have been reached. Thus, even if the SAT erred by taking into account an irrelevant consideration in regards to whether the appellant, as a businessman, could be presumed to know of his rights, I do not consider that such an error could be material in the circumstances of this case.
As regards ground 2(c), it is incorrect to assert that the SAT failed to have regard to whether the appellant had an arguable case for review. It was clearly to this question that the Tribunal's references to the appellant's failure to raise the issue in subsequent proceedings was directed. That failure went not only to the issue of delay but also to whether any claim that the builder was Kilbride was consistent with the appellant's actions in those proceedings.
In any event, my own assessment is that a review of the BDT's decision of 14 December 2010 would have no reasonable prospect of success. The appellant was present when the BDT made its decision and the consequences of his admission that he was the builder were made very apparent to him. There was nothing on the face of the contract to suggest that Kilbride had anything to do with the building arrangements and it was not disputed that the respondents had dealt exclusively with the appellant. Whilst some payments by the respondents had been made to Kilbride's account, that was not inconsistent with the appellant being the builder. His very belated suggestion that Kilbride was the builder is redolent of a subsequent construction of the facts in an effort to avoid liability.
As regards ground 2(d), it was submitted on the hearing of the appeal that the SAT had failed to consider the prejudice that would flow from an incorrect finding as to who was responsible for building the house. At the hearing in the SAT the only prejudice relied upon by the appellant was that the respondents had sought to enforce the order to pay. This had the consequence that personal assets of the appellant were at risk of being seized by the bailiff and sold to meet the judgment debt. That was, of course, the natural and obvious consequence of the failure to pay. The appellant could have been in no doubt as to his personal risk in that regard given what he had been told by the Chairperson of the BDT a year earlier.
At the appeal hearing counsel for the appellant advised that the order to pay had now been satisfied by a payment from Kilbride. Whilst this might be thought to be consistent with Kilbride accepting responsibility for being the builder it must be remembered that this occurred in the context of enforcement proceedings against the appellant.
Counsel for the appellant suggested that there would be no prejudice to the respondents if an extension of time was granted because Kilbride could not seek to recover the payment if the outcome of review proceedings was that it was found to be the builder. The difficulty with this rather curious argument is that it assumes that Kilbride made the payment on the basis suggested rather than on some other basis, for example, at the direction of the appellant as a loan to him or as repayment of a loan from him. It also assumes that Kilbride would be found by the BDT to be the builder and found to be responsible for the defects. To unwind everything that has occurred since 14 December 2010 is fraught with difficulty and uncertainty as to the outcome.
It simply cannot be assumed that the respondent would not be prejudiced by an extension of time because payment has now been made by Kilbride. Indeed, if there is no possible benefit to the appellant (with a correspondent prejudice to the respondents) it is difficult to understand why these proceedings have been brought.
In any event, this was not a matter that was raised in the proceedings before the SAT. The payment occurred after the decision of the Tribunal was made. This is not a matter that was relevant to the exercise by the SAT of its decision. It would only be relevant if it was found that the SAT erred in the exercise of its discretion and it was necessary to exercise that discretion afresh.
Conclusion
No error in the exercise of the discretion to refuse an extension of time has been established. That decision was one that was clearly open to the SAT on the available information. I am not satisfied that any of the alleged errors in the exercise of that discretion are reasonably arguable.
In any event, I am of the view that the decision made was clearly correct in all of the circumstances. In particular, having regard to the lengthy delay and the fact that proceedings continued in both the BDT and the SAT following the decision of 14 December 2010, an extension of time that would have the effect of undoing those events and requiring the respondents to start proceedings again would have been quite inappropriate.
For the above reasons leave to appeal on both grounds is refused and the appeal is dismissed.
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