Laurence and Tanya Matty v Scott and Julie Boyd t/as Vast Constructions

[2014] NSWCATCD 216

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Laurence and Tanya Matty v Scott and Julie Boyd t/as Vast Constructions [2014] NSWCATCD 216
Hearing dates:	2 June 2014
Decision date:	28 October 2014
Jurisdiction:	Consumer and Commercial Division
Before:	G Meadows, Senior Member
Decision:	The renewal application is dismissed. The applicants are to pay the respondent the amount of $26,450.36 forthwith
Legislation Cited:	Civil & Administrative Tribunal Act 2013 Consumer Trader and Tenancy Tribunal Act 2001
Category:	Principal judgment
Parties:	Laurence and Tanya Matty (applicants) Scott and Julie Boyd t/as Vast Constructions (respondent)
File Number(s):	HB 14/02361
Publication restriction:	Nil

REASONS FOR DECISION

1. On 2 October 2013 I made the following orders in relation to the substantive claims:

1. In relation to claim number HB 12/20922 the builder is to complete and rectify the following works:

1. repair leaks to carport roof;

2. repair “undulations” to tiles on carport roof;

3. adjust kitchen and bathroom cabinetry;

4. sand front entry deck (finishing to be completed by owners);

5. repair stacker door frame and replace fly screens;

6. put stormwater pipes underground;

7. silicon seal in wet areas;

8. repair entry handrails;

9. repair internal staircase (“bleaching”);

10. repair termite barriers;

11. replace flanges behind cistern stopcocks;

12. repair eaves and gutters to southern elevation of “alfresco deck area”;

13. install shut off valve to hot water tank;

14. relocate geo-fabric, required waterproofing and ag drain in storage area;

15. remove builder’s waste; and

16. on completion of all the above items, provide all certifications to the owners including an engineering certificate for the garage concrete slab and the block retaining walls under the garage slab.

2. The above works are to be completed within 90 days of the date of these orders. On completion of the works Scott and Julie Boyd t/as Vast Constructions are to provide all relevant certifications and warranty documents to Laurence and Tanya Matty.

3. In relation to claim number HB 12/30737, on completion of the above works Laurence and Tanya Matty are to pay Scott and Julie Boyd t/as Vast Constructions the sum of $26,450.36.

2. On 13 January 2014 the applicants filed an application to renew proceedings, alleging the orders had not been complied with by the respondent, as follows:

“Works not completed to a proper workmanship manner/certification not supplied/warranty documents & certificates not supplied”.

The applicants sought 2 orders: an order for the payment of: $“TBC” and an order that they do not have to pay the sum of $26,450.36 to the respondent. The actual works the subject of the renewal application were:

1. repair leaks to carport roof;

2. repair “undulations” to tiles on carport roof;

3. adjust kitchen and bathroom cabinetry;

4. sand front entry deck (finishing to be completed by owners);

5. repair stacker door frame and replace fly screens;

6. put stormwater pipes underground;

7. repair internal staircase (“bleaching”);

8. repair termite barriers;

9. on completion of all the above items, provide all certifications to the owners including an engineering certificate for the garage concrete slab and the block retaining walls under the garage slab.

10. The above works are to be completed within 90 days of the date of these orders. On completion of the works Scott and Julie Boyd t/as Vast Constructions are to provide all relevant certifications and warranty documents to Laurence and Tanya Matty.

3. The application was filed by completing an “Application to Renew Proceedings” under the letterhead of the former Consumer Trader & Tenancy Tribunal. This application was sent to the “NSW Civil and Administrative Tribunal” by a covering letter dated 13 January 2014, marked “Received 23 JAN 2014 NCAT TAMWORTH”.

4. The matter was listed for directions before the Principal Member Harrowell on 21 February 2014, at which time the following orders were made:

2.   The applicants shall provide to the respondent and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the applicant intends to rely at the hearing by 14-Mar-2014.

3.   The respondents shall provide to the applicant and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the respondent intends to rely at the hearing by 04-Apr-2014.

IMPORTANT NOTE:

For the purpose of these directions "document" means:

-Witness statements / statutory declarations or affidavits

-Expert reports

-Photographs

-Accounts or receipts

-Quotations

-Any other document to be relied upon

And all documents must be legible and in colour (if the original is in colour).

4.   The documents provided by each party must be placed in a folder, each page must be numbered to provide easy identification by all concerned at the hearing. Folders prov. 'id to the Tribunal and to the other party(ies) must be identical and in the same order. The folder (s} should be marked with the name of the party and include:

-an index

-a chronology of significant events

-all documents required by these directions

And all documents must be legible and in colour (if the original is in colour).

5.   On or before 14/3/14 the applicants are to file and serve:

a list, by reference to the order 1 made 2/10/13, of the work said now to be incomplete or defective, the respects in which it is incomplete or defective, the work required to complete the items and the reasonable cost to complete or rectify the work;

a list of any certificates not provided contrary to order 2 made 2110/13.

6.   A failure by a party to provide documents in accordance with the Tribunal orders may result in the party not being able to rely on the documents at the hearing, unless leave is granted to do so.

7.   All evidence from a party's witness(es) in support of that party(ies) must be in the form of a statement, statutory declaration, affidavit or expert report as appropriate.

8.   Any application for leave to be represented is to be made to the Tribunal on or before 17-Mar-2014.

9.   The respondents will seek access to the site in 14 days from 21/2/14, such access to be agreed at a mutually convenient time. In the event of any dispute, the respondents may write to the Tribunal seeking and order for access. The respondents may attend with a legal advisors however that does not mean the Tribunal will grant legal representation if such an application is made

5. There was correspondence between the parties and the Tribunal in regard to alleged failures to comply with these directions, including what appear to have been rather barren arguments as to the correct addresses for service. However, I am satisfied that both parties had filed and served their evidence a considerable time prior to the hearing.

6. I consider I should note that when the matter was listed for hearing on 02 June 2014 at Tweed Heads, the Tribunal files were not forwarded to the venue in time for the hearing. However, as just noted, I had the parties’ documents and submissions for some time prior to the hearing and, having decided the original substantive applications, and with the benefit of copies provided by the parties on the day as well as extensive submissions particularly by the applicant Mrs Matty speaking to her documents, I did not experience any difficulty in understanding the parties’ respective cases. However, for additional caution, I reserved this decision.

LEGISLATION

7. As I noted above in paragraph 3, the applicants commenced these renewal proceedings by completing a form, or rather a “Notice” to renew proceedings pursuant to s43 of the repealed Consumer Trader & Tenancy Tribunal Act 2001. That act and the Tribunal itself were repealed or abolished by the Establishment Day of the Civil and Administrative Tribunal of NSW, being 01 January 2014. The proceedings, from that date forward, are governed by the Civil and Administrative Tribunal Act 2013 (“the CATA”).

8. Schedule 1 to the CATA provides for “Savings, transitional and other provisions”, including Clause 12:

12   Renewal of proceedings before CTTT

Without limiting clause 14, the provisions of clause 8 (Renewal of proceedings in respect of certain Division decisions) of Schedule 4 are taken to extend to an order made by the Consumer, Trader and Tenancy Tribunal before the establishment day as if the order had been made by NCAT in exercise of functions allocated to the Consumer and Commercial Division of NCAT.

Clause 8 of Schedule 12 to the CATA (the Schedule containing provisions in relation to the Consumer and Commercial Division of the Tribunal) states:

8   Renewal of proceedings in respect of certain Division decisions

(1)   If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.

(2)   If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.

(3)   The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act.

(4)   When proceedings have been renewed in accordance with this clause, the Tribunal:

(a)   may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or

(b)   may refuse to make such an order.

(5)   This clause does not apply if:

(a)   the operation of an order has been suspended, or

(b)   the order is or has been the subject of an internal appeal.

9. Schedule 1 also contains the following provisions:

9   Certain unexercised rights to make applications or appeals to existing tribunals may continue to be exercised in NCAT

(1)   This clause applies to each of the following unexercised rights (an existing unexercised application or appeal right):

(a)   an unexercised right to apply to an existing tribunal for it to make a decision at first instance concerning a matter,

(b)   an unexercised right to apply to an existing tribunal for a review of a decision of another person or body,

(c)   an unexercised right to appeal to an existing tribunal against a decision of another person or body.

(2)   A person who has an existing unexercised application or appeal right may apply or appeal to NCAT for the exercise of the same functions that could have been exercised by the existing tribunal to which the right relates had the existing tribunal not been abolished.

Note. An application or appeal under this clause that would have required leave before the establishment day will still require such leave. Also, any time limits under existing law for making the application or appeal will continue to apply to applications or appeals under this clause. See subclause (3).

(3)   For the purposes of subclause (2):

a)   NCAT has and may exercise all the functions that the relevant existing tribunal would have had in relation to the application or appeal if it had been made before the establishment day (including any functions relating to the granting of leave to apply or appeal), and

(b)   the provisions of any Act, statutory rule or other law (including provisions concerning the time within which to apply or appeal) that would have applied to or in respect of the application or appeal had this Act and the relevant amending Acts not been enacted continue to apply.

10. It will also be necessary to consider the following definition in Schedule 1 to the CATA:

6   Interpretation

(1)   In this Division:

…

unexercised right means a right (including a right exercisable only with leave) that:

(a)   was available to be exercised immediately before the establishment day, and

(b)   had not yet been exercised before that day.

CONSIDERATION AND DECISION

11. Before dealing with the substantive application, I consider the legislative provisions and the right of the applicants to bring this application.

12. In my opinion, the right to renew an application provided by Clause 12 of Schedule 1 to the CATA and Clause 8 of Schedule 4 to the CATA do not apply to these proceedings. The wording of those clauses makes it clear that the right to renew proceedings relates to an order of “the Tribunal”, that is, the Civil and Administrative Tribunal. In this case, there is no such order. The orders that are referred to in this application were those made by the CTTT in applications 12, both of which were decided before the Establishment Day.

13. The right to a renewal of proceedings pursuant to s43 of the CTTT Act is an “unexercised right” as defined in Schedule 1 to the CATA. I find that the applicants had a right to renew the proceedings which accrued on 31 December 2014. The applicants therefore had the right to file this application after that date and it has been treated as an application in the Civil and Administrative Tribunal.

14. The parties’ evidence and submissions suggest that from time to time they have encountered difficulties in working reasonably together. I refer, for example, to difficulties the respondent builder has had in obtaining access to the premises, and in arranging meetings between the parties’ experts for the purpose of agreeing on finalisation of the works.

15. It is the position of the respondent that all works the subject of my original orders were completed by 19 December 2013. From that date, the respondent was willing and able to hand to the applicants all relevant certificates and were expecting the applicants to comply with the order in relation to payment.

16. The applicants, for their part, professed to have concerns about the nature of some of the repairs and whether they were to an appropriate standard and likely to last. I note that during this period the applicants appear to have been in frequent consultation with their expert, Mr. David Oke, who has prepared a number of brief reports in relation to the rectification works.

17. I am satisfied on the basis of the evidence produced by both parties, that from 19 December 2013 attempts were made to arrange meetings or inspections by the experts for each party. The respondent provided copies of certain emails, including one dated 20 December 2014 from Mrs Boyd to Mrs Matty, to the effect that the works were completed, the certificates were attached to the email and requesting advice as to a suitable date for an inspection by the experts “early in the new year”. An email from Mr. Boyd to the experts that same day advises to the same effect and requests them to advise the earliest date in January an inspection may be held on site, noting the time limitations given the time of year, that is, during the normal Christmas break. (I note that it is sometimes difficult to be sure which individual actually sent some emails, for example if one person was using the email account of their spouse. However, I am satisfied the emails were sent at the time and date shown in the usual header information).

18. Again on what appears to have been a critical date, 20 December 2013, the applicants’ expert, Mr. Oke, emailed Mr. Boyd, in regard to the need to arrange an inspection and including a lengthy and detailed set of comments and concerns, apparently prepared by the applicants personally.

19. I note at this stage that the applicants’ evidence contains two reports prepared by Mr. Oke, dated 26 November 2013 and 25 February 2014. These indicate that Mr. Oke conducted a number of inspections of the site during that period, not in the company of the respondent or its expert. An email from Mr. Oke to Mr. Boyd in reply to the latter’s request for feedback in relation to a further site inspection “to finalise the works that were carried out”, stated:

“Advising you that at the Matty’s request I inspected the works on Monday 6th January [2014] and provided them with a report later that week.

In my opinion there are a few of the issues that needed further attention by yourself.

The Matty’s and myself did not involve you or Kelvin [the respondent’s expert] at that time as we believe that you may need time to consider the items rather than by put under any pressure whilst at an inspection.

20. In my opinion that is a remarkable document and a remarkable attitude for the applicants and the applicants’ expert to take. I find the explanation for not involving the respondent in an inspection to be quite specious and I do not accept it. As just noted, Mr. Oke prepared a report dated 08 January 2014. That date was a Wednesday and it can be assumed that the applicants did not receive the report prior to that date and more likely within a day of two of the date of the report. In any case, as noted above, the renewal application was prepared on 13 January 2014, which was the following Monday.

21. I find that the applicants deliberately sought to deny any further meetings between the parties’ experts or between the parties in person, because they had already decided to bring this renewal application. I find, given my comments in regard to the “explanation” provided by Mr. Oke in the previous paragraph, that this decision was made with the deliberate intention of ensuring that the respondent would not be given an opportunity to discuss and if necessary agree to further rectification works.

22. I do not criticise the applicants for coming to their own conclusions as to whether they are satisfied with the rectification works undertaken by the respondent, nor with their apparent decision not to permit the respondent to return to the site for any further work. In that regard I am particularly impressed by the information contained in the report of Mr. Ian Anderson dated 10 March 2014 in that regard. In my view that information accords with the actions of the applicants and Mr. Oke in early January 2014, to prevent any further discussions or meetings with the respondent.

23. For its part, the respondent professes to be ready, willing and able to return to the site in the event that the experts agree that further works are still required if the respondent is to fully comply with the orders made by me in October 2013.

24. I find it is not reasonable of the applicants to make their own decision to prevent further access by or meetings with the respondent. I find the respondent professed to have completed the works by 19 December 2013 but still recognised that further discussions and works may be required. That appears to me to be a reasonable way of proceeding in the circumstances. The respondent was prevented from doing so by the actions of the applicants. In doing so, in my opinion the applicants prevented independent experts from considering jointly whether there were required works and what the nature of those works would be.

25. For the above reasons, I do not accept the applicant’s submission that the respondent should not be permitted to return to the site but that the original orders should be converted into a money order in the amounts sought to be proved by the various quotations provided by the applicants. This renewal application is dismissed.

26. I find that orders 1 and 2 have been complied with to the extent that the respondent was permitted by the applicants to do so. The applicants are to pay the sum of $26,450.36 to the respondent forthwith.

Geoffrey Meadows

Senior Member

Civil and Administrative Tribunal of NSW

28 October 2014

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

Decision last updated: 05 February 2015