Matthews v Christy

[2000] WADC 35

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   MATTHEWS -v- CHRISTY [2000] WADC 35

CORAM:   BLAXELL DCJ

HEARD:   29, 30 NOVEMBER, 16 DECEMBER 1999

DELIVERED          :   9 FEBRUARY 2000

FILE NO/S:   CIV 174 of 1999

BETWEEN:   LYNTHORNE JAMES MATTHEWS

Applicant

AND

ALECIA CHRISTY
Respondent

Catchwords:

Appeal - Building Disputes Committee - Application for extension of time to apply for leave to appeal - Construction of house and studio for respondent designed by applicant architect - Disputes as to whether the applicant also acted as "builder", and as to numerous alleged defects in construction - Decisions by Building Disputes Committee adverse to applicant - Delay in applying for leave to appeal attributed to fault on the part of the applicant's solicitor - Turns on own facts

Legislation:

Builders Registration Act 1939

Home Building Contracts Act 1991

Rules of the District Court - Order 8

Result:

Application for extension of time refused

Representation:

Counsel:

Applicant:     Mr M C Hotchkin

Respondent:     Mr P K Walton

Solicitors:

Applicant:     Hotchkin Hanly

Respondent:     Jackson McDonald

Case(s) referred to in judgment(s):

Boomalli Ltd v Hake (1985) WAR 7

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Girando v Girando (1997) 18 WAR 450

Jackamarra v Krakouer (1998) HCA 27

Mantegna v Seafeast Sales Pty Ltd, unreported; FCt SCt of WA; Library No 950497; 24 August 1995

Palata Investments Ltd v Burt and Sinfield Ltd (1985) 1 WLR 942

Wilson v Metaxas (1989) WAR 285

Wing Luck Foods v Lay Choo Lim (1989) WAR 358

Case(s) also cited:

C M Van Stillevoldt v El Carriers Inc [1983] 1 WLR 207

Cardinal Constructions Pty Ltd v Argo (1996) 16 SR (WA) 344

Court Holdings Limited v Pernay Pty Ltd, unreported; FCt SCt of WA; Library No 5515; 21 September 1984

Craig v South Australia (1995) 184 CLR 163

Cranley v Medical Board of Western Australia (1990) unreported; Library No 8610; 27 November 1990

Devries v Australian National Railways Commission (1993) 177 CLR 472

Gallo v Dawson (1990) 93 ALR 479

Homestyle Pty Ltd v City of Belmont & Anor [1999] WASCA 59

Hope v City of Bathurst (1980) 114 CLR 1

McNair v Press Offshore Ltd (1996) 17 WAR 191

Monaco v Arnedo Pty Ltd, unreported; FCt SCt of WA; Library No 940481; 6 September 1994

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282

Shaw v McLeod, unreported; SCt of WA; Library No 4707; 8 November 1982

1. BLAXELL DCJ:  This is an application for an extension of time for leave to appeal from two decisions of the Building Disputes Committee ("the Committee").  Although those decisions were made on 16 December 1996 ("the first decision") and 2 February 1999 ("the second decision"), the present application was not filed until 5 July 1999.  Order 8, rr5 & 29 of the District Court Rules limit the time for an application for leave to appeal as of right to 21 days, and the applicant accordingly seeks extensions of time of approximately 2 years 1 month and 4½ months respectively. 

The nature of the original disputes between the parties

1. At all material times the respondent was the owner of the property at 20 Chittering Road, Chittering, on which she wished to construct a house and studio ("the residence").  The respondent was an architect and registered builder, but according to him did not carry on business as a builder. 

2. During May and June 1994 there were negotiations and discussions between the parties culminating in an oral agreement in relation to construction of the proposed residence.  Although it is common ground that the applicant prepared working drawings and agreed to perform a role in construction beyond that of a normal architect, the parties differ as to the terms of the agreement.  According to the respondent there was an oral contract on 10 June 1994 whereby: 

   "…  The (applicant) would carry out building work in accordance with the working drawings as varied within 12 weeks and (the respondent) would pay the sum of $89,000 to (the applicant) in consideration thereof."  (Paragraph 14 of Points of Claim)

3. The applicant on the other hand pleaded in response to this claim: 

   "…  That he agreed to design a residence in his capacity as an architect, the cost of construction of which was estimated at $85,000 … 

   (The applicant) denies that he entered into any contract oral or otherwise in relation to the construction of (the respondent's) residence.  (The applicant's) engagement was that of an architect who had agreed to superintend the construction and pay the subcontractors on behalf of (the respondent).  The administration of the contract involved ensuring that (the applicant) obtained sufficient funds from (the respondent) to secure the payment of tradespersons.  (The applicant) did not carry out any building work."  (Paragraphs 9 & 14 of the applicant's Answer)

4. It is also common ground that the building licence issued by the Shire of Chittering was issued to the applicant as builder.  On the respondent's version this was in accordance with the agreement as made, whereas the applicant contends that the licence was issued to him by mistake.  It is nevertheless clear that the applicant did not at any material time take issue with the fact that the building licence had been issued to him as builder. 

5. Construction of the residence commenced on 21 July 1994 but it was not completed, and (as I understand the facts) there was no substantial work performed after November 1994.  The respondent made progress payments to the applicant of $20,000 (on 26 July 1994), $30,000 (on 22 August 1994), $20,000 (on 26 September 1994), and of $14,000 (on 27 October 1994).  It is common ground that each of these payments did not reflect the value or scope of the work done and materials and services supplied as at each relevant date.  According to the applicant, the reason for this is that: 

   "… The payments were in advance on account of payments to subcontractors."  (Paragraph 25 of Answer)

6. On 28 November 1994 a representative of the Shire of Chittering inspected the building works and by letter to the applicant (dated 29 November) required rectification of certain alleged deficiencies in construction.  The applicant responded by letters to the Shire dated 29 June and 20 October 1995, and in terms which appeared to accept responsibility for the issues raised.  However, the applicant did not subsequently arrange for or carry out any significant rectification work and the defects remained substantially unremedied. 

7. During late 1995 the respondent engaged the services of a building advisory service known as "Archi Centre".  In a letter to the applicant dated 20 September 1995, Archi Centre identified numerous alleged defects in construction as well as other contractual issues.  Archi Centre suggested a meeting to resolve these issues, but (as I understand the facts) this did not occur.  On 13 October 1995 the respondent lodged a complaint with the Committee. 

The proceedings before the Committee

1. In accordance with the normal procedure following lodgement of a complaint, an Inspector from the Builders Registration Board carried out an inspection of the property (in the presence of both parties) on 23 November 1995.  This resulted in a written assessment dated 14 December 1995 which was forwarded to both parties and required the applicant (as "builder") to rectify numerous alleged defects in construction.  The applicant was also informed that: 

   "If you consider you should not be required to take the actions set out in relation to each complaint … you should submit your reasons for that, and any evidence you wish to be considered, in writing, to the Registrar, forthwith. 

   Prior to making a decision or order, not less than seven days is provided in which both parties may make written submissions in respect of the Inspector's assessment of the items of complaint.  After that time the Registrar may determine the complaint and make an order or decision based on the information available to him or he may refer the matter to (the Committee) for formal hearing and determination.  You will be informed of the action taken by the Registrar in due course." 

2. As I understand the facts the applicant did not carry out any rectification work nor make any written submissions to the Registrar.  On 2 April 1996 the Registrar of the Committee issued "Order to remedy No.27/96" requiring the applicant to remedy the defects as identified by the Inspector.  The Registrar had delegated power to make this order pursuant to s33 of the Builders Registration Act 1939, (which section also provides for review of such an order by the Committee). 

3. It should be noted that the respondent's complaint in any event encompassed matters beyond those dealt with by the order to remedy.  In this regard, the respondent's "points of claim" dated 18 July 1996 alleged that the applicant had (inter alia): 

   -failed to carry out the building work in accordance with the working drawings. 

   -carried out work which was "faulty or unsatisfactory" (for the purpose of s12A of the Builders Registration Act 1939). 

   -breached provisions of the Home Building Contracts Act 1991 in that: 

   -the contract was not in writing. 

   -the applicant did not give the respondent a copy of any signed contract. 

   -variations to the contract were carried out without the applicant providing the required written detail. 

   -the residence as constructed did not comply with Council and Building Code of Australia requirements.

   -progress payments had been demanded in advance of work completed. 

4. The applicant filed an Answer to these points of claim which essentially denied he was the "builder" or that there had been any contract between the parties "in respect to the construction work of (the respondent's) residence". 

5. At a preliminary hearing on 17 September 1996 the Committee made a number of programming orders.  With the consent of the parties the Committee also directed that: 

   "The matter be limited for the first instance to a hearing to determine whether or not (the applicant) was acting as the builder or as the architect under the terms of an oral contract with (the respondent)."  

6. The applicant was legally represented at both the preliminary hearing and the subsequent hearing on 5 and 6 December 1996 which resulted in "the first decision".  In its reasons for decision on 6 December 1996, the Committee confirmed that: 

   "…  This hearing is to determine whether the respondent was operating as a builder in which event we have jurisdiction, or as architect in which event the Committee does not have jurisdiction." 

7. After giving very extensive reasons, the Committee went on to conclude that: 

   "…  (The applicant) at all times acted and intended to act as a turnkey or design-and-build contractor as do most project builders in the industry.  The only difference between himself and the project builders was that (the applicant) used his architectural expertise to design one-off homes, rather than apply a few designs to a number of houses.  In the circumstances (the applicant) is the builder to whom section 12A of the Builders Registration Act applies.  As such having incurred expenses beyond the contract sum of $89000 without obtaining any authority from the owner or variation to the contract sum, he has to meet those costs as a loss.  (The applicant) must also make certain that the building is completed to a satisfactory standard in accordance with the requirements of the Committee's Inspector." 

8. Although the Committee did not expressly do so it implicitly confirmed the Registrar's order made on 2 April 1996. 

9. On 21 July 1998 the Committee conducted a further hearing and determined that the applicant should pay the respondent the sum of $20,646.50 costs as taxed immediately.  It is my understanding that these were the costs of all of the proceedings before the Committee up until that date.  The applicant had previously been aware of the hearing on 21 July 1998 but on legal advice had chosen not to be represented. 

10. Thereafter the Committee conducted a series of five directions hearings, which were later described as being "all with the intention of getting action from the builder both to pay the costs of the hearings and to rectify the outstanding work at the house". 

11. On 11 November 1998 the applicant was ordered to pay $2,000 into the Committee's trust account so that an independent engineer could be instructed to assess the structural soundness of the building.  This assessment was completed on 30 January 1999 and a report provided by Mr R Affleck of McDowall Affleck Pty Ltd.  By this time the respondent had also obtained another builder who had quoted the sum of $125,700 as being the costs of the necessary repairs. 

12. A second substantive hearing was conducted on 26 February 1999, and the applicant, although present, was not legally represented.  In its reasons for decision following that second hearing, the Committee noted the following concerns: 

    "A period of just over 4 years had elapsed since the building work stopped and more than 2 years had elapsed without any action at all being taken by the Builder to complete the unfinished work in accordance with the decision of the committee of 5 December 1996.  There was now clear evidence that the Builder was flouting the decision of the committee.  Nothing had occurred to prevent him from completing the work.  The Owner at all times had been willing to allow him access to the building, but he had made no effort to even start the work, let alone make arrangements for others to do work.  We are not convinced that the Builder will proceed with repairs or that he is in a position to persuade sub‑contractors to take action." 

13. In light of the evidence from Mr Affleck and from the alternative builder engaged by the respondent, the Committee went on to determine that the applicant was liable for costs of rectification and repair totalling $79,000 ("the second decision"). 

The proposed grounds of appeal

1. The grounds of appeal that the applicant wishes to raise are considerably detailed and are in excess of seven pages long.  As to the first decision, the applicant's essential contentions are that: 

   -the Committee erred in law in determining the question whether the applicant was acting as a builder or an architect, because pursuant to s12A of the Builders Registration Act 1939, all that needed to be determined was whether the applicant was "the person who carried out building works". 

   -the Committee also erred in law in making factual findings which exceeded the stated scope of the first hearing. 

   -the Committee erred in law by failing to give adequate reasons for its findings. 

   -the Committee erred in law and fact in finding that there was a contract to build at a fixed price, when the weight of evidence was that there had been merely an estimate of costs. 

   -alternatively if the work was performed on the basis of a fixed price contract, the Committee erred in failing to find there had been an oral variation requiring the respondent to make additional payments to the applicant. 

   -the Committee erred in fact in finding that the applicant incurred certain costs and expenses without the respondent's authority. 

2. In respect of the second decision, the applicant's essential grounds of appeal would be that: 

   -the Committee erred in law in determining that the applicant was not entitled to be reimbursed for costs paid to subcontractors. 

   -the Committee erred in fact in finding that there was "clear evidence that the (applicant) was flouting the decision of the Committee".  

   -the Committee erred "in failing to consider the disadvantage to (the applicant) of not having legal representation at the hearing and in failing to consider an adjournment … given the value of the subject matter of the dispute, the complexity of the issues raised in (the Affleck report), and the fact that the Affleck report was made available to (the applicant) less than 24 hours before the hearing". 

   -the Committee erred in failing to give proper weight to evidence in the Affleck report that no demolition work was required. 

   -the Committee erred in adopting costs of remedial work which were "grossly over‑estimated". 

   -the Committee did not act according to justice, equity and the substantial merits of the case. 

The principles governing the discretion to extend time

1. In Palata Investments Ltd v Burt and Sinfield Ltd (1985) 1 WLR 942, 946, the Court of Appeal held that there are four major factors to be considered in the exercise of the discretion to extend time for an appeal. These factors are firstly, 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. Depending upon the particular case there may also be additional factors.

2. In Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 the Full Court applied these same factors when deciding not to extend time for the entry of an appeal for hearing. Although the majority of the High Court in Jackamarra v Krakouer (1998) HCA 27 has thrown doubt on the Esther decision, the principles as set out in Palata are still relevant to applications for extensions of time that seek to put at risk the substantive rights of a respondent.  (Needless to say the respondent in the present case has a substantive and vested interest in each of the decisions made by the Committee.) 

3. In Girando v Girando (1997) 18 WAR 450 the Full Court again approved Palata, and also referred to the following passage from Boomalli Ltd v Hake (1985) WAR 7, 9, where Burt CJ stated:

   "But it must, we think, be recognised that a successful party in litigation has a vested interest in the judgment which he has obtained, and subject to the exercise of the discretion of the Court to extend time he ought thereafter be able to conduct his affairs upon the basis that that judgment is final, subject only to its displacement on and by an appeal instituted and thereafter pursued according to the time requirements of the rules.  That leads one to say that an order extending time requires that some cogent reason be advanced for its exercise and the cogency of the reasons must surely be required to increase as the extension of time which is sought increases.  And in the exercise of that discretion it is, we think, important that the Court have regard to the nature of and to the subject matter of the litigation in which the extension of time is sought." 

4. Although most authorities speak of the need for an applicant for extension of time to have an "arguable case", Brennan CJ and McHugh J in Jackamarra (at 3) stated that the requirement was that there be "some prospects of success". Their Honours were also of the view that when assessing such prospects of success, the Court should not go into "much detail on the merits" because it is not appropriate to conduct a full rehearsal of the appeal. Accordingly, the merits of the proposed application for leave must necessarily be determined in a "fairly rough and ready way". (See Jackamarra (at 4)).

5. By enacting that an appeal could only lie by leave of this Court, Parliament obviously intended that the number of appeals from decisions of the Committee should be minimised.  Similar statutory provisions have been considered by the Supreme Court in Wilson v Metaxas (1989) WAR 285, and in Wing Luck Foods v Lay Choo Lim (1989) WAR 358. In Wilson (at294) it was held that: 

   "The jurisdiction to hear the appeal is founded upon the grant of leave.  The grant of leave lies in the discretion of the court.  In general, however, it must be shown that the decision in respect of which leave is sought was wrong, or at least attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done by leaving the decision unreversed …  The requirement that substantial injustice be shown is no more than a guideline for the exercise of what must necessarily be and remain a broad decision to grant or withhold leave.  What is substantial injustice must depend on all the circumstances of the case." 

1. In Wing Luck Foods the Full Court emphasised (at 361) that:

   "It will not normally be sufficient that the decision appealed from is apparently wrong or attended with doubt.  Something more will need to be shown.  It may well be that in some cases it will be sufficient to show that there is a significant question of law to be considered.  In others it may be possible to point to some other feature which requires the consideration of this Court to avoid a substantial injustice if leave is not granted." 

2. In my view these various authorities govern the exercise of my discretion in the present case and require me to have regard to the length of the delay, the reasons for the delay, the prospects of success of the proposed application for leave, and the extent of any prejudice which would be suffered by the respondent if an extension is granted.  I should only conclude that the application for leave has some prospects of success if it has been shown that the decision of the Committee is wrong or attended with sufficient doubt, and that additionally there will be a substantial injustice if it is left unreversed. 

The applicant's explanations for his delay

1. As already observed, the applicant was represented by his solicitor at the Committee's hearing on 5 and 6 December 1996 as well as the preceding directions hearing on 18 September 1996.  In an affidavit sworn on 5 July 1999 the applicant deposes that following the first decision he consulted his solicitor concerning an appeal and was told: 

   "Yes, we should appeal the decision at the end of the matter.  This was only the hearing of the preliminary issue.  It would be premature to lodge an appeal before the entire matter is decided by the Committee." 

2. Furthermore, at a time prior to the costs being assessed (on 23 July 1998), the applicant deposes that "I spoke to my solicitor about these costs at the time and he told me the costs could be dealt with at the end of the matter". 

3. Thereafter, the applicant attended the property with the Builders Registration Board Inspector on several occasions and made arrangements for tradesmen to perform work on lists of remedial work "even though I believed we were going to appeal the decision at the end".  The arrangements that were made with tradesmen were cancelled on each occasion as a result of the respondent presenting "new list(s) of complaints". 

4. In 1997 the applicant lost his building licence under the Builders Registration Act 1939 and there was concern that he would be unable to perform remedial work in excess of the statutory limit of $10,000 for unlicensed builders.  It was in these circumstances that the respondent obtained a  quote for remedial work from an alternative builder. 

5. The applicant considered that alternative quote to be "grossly over‑costed".  The applicant deposes that it was for this reason that "at a subsequent directions hearing my solicitor insisted that an independent engineer perform an inspection to assess the structural soundness of the building.  I paid into the Committee's trust account the sum of $2,000 for the commissioning of this report". 

6. Prior to the second hearing on 2 February 1999 the applicant "was not aware that this was to be a full hearing of the Committee to determine the extent of the remedial work required".  He was informed of the hearing by his solicitor and went to the solicitor's office on the morning of the hearing.  It was also only approximately 12 hours before the hearing that the applicant received the independent Affleck report. 

7. Upon attending on his solicitor on the morning of 2 February 1999, the solicitor told the applicant "that he could not represent me at the hearing as he had another matter to attend to".  Accordingly the applicant went along to the hearing not knowing whether it was a directions hearing or a final hearing.  The applicant deposes that "without my solicitor present I did not know about many of the directions and other orders made by the Committee in my absence in previous hearings". 

8. Immediately following the second decision the applicant told his solicitor that he wanted to appeal the matter.  According to the applicant:  "He told me he would take care of it".  It was only after the applicant was served with a bankruptcy notice that he realised that no appeal had been lodged by his solicitor. 

9. The applicant's former solicitor has sworn two affidavits (dated 5 July and 24 September 1999).  In the first affidavit the solicitor confirms that following the first decision he advised the applicant "that an appeal be contemplated but held over until the final determination of the Committee".  Following the second decision the solicitor advised the applicant that there was merit in an appeal and was instructed to lodge an appeal.  However, "due to the lack of my availability and (the applicant's) bereavement due to the death of his father, an appeal was not lodged in time". 

10. This first affidavit by the solicitor was obviously very scant, but the second affidavit does go into more detail.  This second affidavit states that when the first decision was handed down by the Committee: 

    "I was very surprised and considered that it was wrong.  (The applicant) wanted to appeal and I advised him that I thought he should, but that he do so at the end of the hearing.  I thought that the decision may not matter if the order to rectify at the end of the hearing was not too onerous.  If it was onerous, then the whole matter would be appealed from." 

11. During the subsequent directions hearings the applicant's solicitor was seeking: 

    "…  A determination as to those defects in the house that were the result of design error and those defects which were the result of building error.  As we intended to appeal the finding that (the applicant) was a builder, but considered that he would have to fix those defects caused by design error in any event, he should at least attend to those items." 

12. The solicitor attended the directions hearing on 18 June 1997 and told the Deputy Chairman that he "had no explanation from Mr Matthews as to why the work had not been carried out". 

13. Prior to the directions hearing on 8 December 1997 the solicitor wrote to the Committee advising that he had received no further instructions from the applicant.  The solicitor deposes: 

    "At that point, I believe that I was no longer acting for him, although I had received no express instructions to cease acting for him.  However, I was happy to assist him when called on to do so at any time in the future.  Our arrangement regarding my retainer was quite informal." 

    (In paragraph 18 of his affidavit the solicitor also states that he did not attend one particular hearing "as the appellant was intending to appear at the various directions hearings".)  

14. With regard to the costs assessment, the solicitor did not advise the applicant to object to the bill or ask for it to be reviewed "as I thought that these were all interlocutory matters, which would be set aside on appeal".  The solicitor also accepts that he failed to respond to numerous letters received from the respondent's solicitors because he "was waiting on instructions in order to respond". 

15. The solicitor met with the applicant on 30 January 1999 (a Saturday), three days prior to the hearing on 2 February 1999.  According to the solicitor, he had "previously told (the applicant) that there were mainly technical building issues and that he did not need me to attend the hearing on his behalf".  Furthermore: 

    "I did not advise (the applicant) to seek an adjournment or to instruct me to appear on his behalf to do so and did not otherwise assist the appellant in the preparation of his case for the hearing on 2 February 1999." 

16. It should be noted that the matters dealt with in the solicitor's second affidavit are also the subject of a second affidavit from the applicant (sworn 16 September 1999).  The applicant's second affidavit largely responds to a very detailed history of the matter as set out in the respondent's solicitor's affidavit sworn 3 September 1999.  I consider it unnecessary to go into all of the detailed issues raised save to note that the applicant accepts that he had been present with his own expert when the residence was inspected by the independent engineer Affleck. 

The merits of the application

1. The statutory framework within which the Committee operates is designed to provide for a rapid and informal resolution of building disputes.  (It is consistent with this underlying purpose that rights of appeal are limited.)  However, in the present instance a complaint lodged on 13 October 1995 in respect of a building project which had stalled approximately a year earlier, is still the subject of litigation more than five years after the dispute began.  In the interim the respondent has been obliged to live in a house, which (in light of all of the evidence) is clearly subject to substantial problems and defects. 

2. Even if I accept the applicant's assertions at face value, and look at them as charitably as I can, it seems to me self‑evident that he has never demonstrated any desire to resolve this long outstanding dispute.  In my view, the only fair interpretation of the whole unfortunate history of the matter is that the applicant has at all times sought to stall and defer the proceedings before the Committee. 

3. I also consider it to be self‑evident that the applicant and his former solicitor always took a very casual attitude towards the "orders to remedy" first made on behalf of the Committee on 2 April 1996.  Those orders were not at any time set aside, and pending review by the Committee continued to remain in force.  Accordingly, by the date of the hearing on 2 February 1999 the Committee was well and truly justified in finding that "there was now clear evidence that the builder was flouting the decision of the Committee". 

4. Given these background circumstances, I am understandably sceptical of the reasons advanced by the applicant for his delay in bringing applications for leave to appeal.  I nevertheless accept that there has been considerable fault on the part of the applicant's former solicitor, and that this has been a substantial contributing factor to the present unhappy state of affairs. 

5. In these circumstances, "blamelessness of the client and the responsibility of the solicitor are material considerations" in the exercise of my discretion to extend time (Malcolm CJ in Mantegna v Seafeast Sales Pty Ltd, unreported; FCt SCt of WA; Library No 950497; 24 August 1995).  However, in my view the conduct of the applicant over the years is not capable of falling within the description of "blameless".  He was not in any way diligent in ensuring that his solicitor was properly attending to the matter, and was quite content that the proceedings should drift on indefinitely.  The applicant and his solicitor were also willing to have the Committee waste time and effort on the comfortable assumption that there would ultimately be a successful appeal resulting in all of the proceedings being set aside.  Their decision in this regard was obviously a tactical one, given the solicitor's evidence that: 

   "I thought that the (first) decision may not matter if the order to rectify at the end of the hearing was not too onerous.  If it was onerous then the whole matter would be appealed from." 

6. Having regard to the lengthy time that has expired since the first decision, and the fact that all subsequent proceedings by the Committee stemmed from that decision, the applicant needs to satisfy me that he has very cogent reasons for his delay in applying for leave to appeal (see Boomalli, ibid).  However, in view of the considerations I have set out above, I make the inevitable finding that the reasons advanced by the applicant are lacking in merit, and are insufficient to displace the vested interest that the respondent has in the outcome of the litigation. 

7. I have come to this conclusion notwithstanding the appearance of error in the first decision by the Committee.  I consider that the applicant does have an arguable case that the Committee erred in determining the question whether the applicant acted as architect or builder, given that it only needed to determine whether he was "the person who carried out the building work".  Of course it is very easy with the luxury of hindsight in proceedings such as the present to observe errors that were not apparent to those who were involved at the time.  In the present instance it is particularly relevant to note that the applicant and his former solicitor were substantial contributors to this error by agreeing to have that preliminary issue resolved. 

8. For all of the above reasons I consider that the justice of the case clearly favours the respondent, and that the application for extensions of time in which to apply for leave to appeal should be refused.