Preece Build Pty Ltd v Woodbury

[2023] NSWCATCD 181

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Preece Build Pty Ltd v Woodbury [2023] NSWCATCD 181

Hearing dates:

On the papers

Date of orders:

08 November 2023

Decision date:

08 November 2023

Jurisdiction:

Consumer and Commercial Division

Before:

R C Titterton OAM, Senior Member

Decision:

1. The time in which to file the set aside application is not extended to 29 September 2023, and the respondent’s application to set aside the Tribunal decision of 21 September 2023 is otherwise dismissed.

2. The order made on 21 September 2023 in matter HB 23/22370 remains in full force and effect.

Catchwords:

PRACTICE AND PROCEDURE – application to set aside decision pursuant to cl 9 of the Civil and Administrative Tribunal Regulation 2022

Legislation Cited:

Civil and Administrative Tribunal Regulation 2022 (NSW), cl 9

Corporations Act 2001 (Cth), s 109X(1)(a)

Cases Cited:

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Category:

Principal judgment

Parties:

Preece Build Pty Ltd, Applicant
Tracey Woodbury, First Respondent
Michael Woodbury, Second Respondent

Representation:

Solicitors:

Applicant, Marque Lawyers
Respondents, self-represented

File Number(s):

HB 23/44268

REASONS FOR DECISION

1. In these reasons I will refer to the applicant Preece Build Pty Ltd as the Builder and to the respondents Mr and Mrs Woodbury as the Homeowners.

Summary

2. On 21 September 2023, in proceedings HB 23/22370 the Tribunal ordered the Builder to pay the Homeowners $39,001.00 on or before 4 pm on 19 October 2023.

3. On 29 September 2023, the Builder sought to set aside that order pursuant to cl 9 of the Civil and Administrative Tribunal Regulation 2022 (NSW) (NCAT Regulation) (the Set Aside Application).

4. That application is opposed by the Homeowners.

5. For the following reasons, I dismiss the Set Aside Application.

Background

6. By application HB 23/22370 filed 15 May 2023, the Homeowners sought an order that the Builder pay it some $35,000.00. This was for work of the Builder they claimed was defective or not completed.

7. The reasons stated in the application for seeking those orders were:

We have paid for work that is either defective or not been completed. We request the order for the stairs

as they were never built. We see this as costing $10,000. We seek the other $25,000 to have another build rectify the work. We do not want Preece Build to complete the work as over the past 17 months Preece have:

stalled the project by being uncontactable and not returning calls/messages,

not shown up at site when said they would,

lied to us about people coming to site when they hadn't,

left the house unsecure,

blamed suppliers and others for issues they have caused,

fixed problems by creating more problems,

left the site unsafe and with rubbish and debris.

We are not confident that Preece will complete the work in a timely and reliable fashion, and if they did it would still have problems.

Preece do acknowledge that they have covered the weepholes in the wall but do not agree that the beam (the beams span approx. 13 meters) needs to be moved. He stated 'There is no reason to move the beam as I can make weep holes anywhere in the wall to ensure airflow.'

Preece previously acknowledged that the posts they installed were splitting and needed to be replaced.

They replaced the posts but only replaced the top half of each post. So now we have posts that are attached to each other in the middle (side by side, screwed together), top half solid pine, bottom half the old post. They are now also out of alignment.

I have photos, email records as evidence of the above.

8. The matter was first listed for directions and conciliation on 5 June 2023 (Directions Hearing). I note that the notice of the Directions Hearing was sent by the Tribunal to the Builder at its registered business address.

9. At the hearing, at which Mr Hayden Preece represented the Builder, the Tribunal made the usual directions for the filing of evidence. The Homeowners were to file their evidence by 10 July 2023, the Builder by 22 August 2023.

10. The Homeowners filed their evidence on 07 July 2023.

11. The Builder did not file any evidence.

12. On July 2023, the Tribunal set the matter down for final hearing on 21 September 2023. Again, the notice of the hearing was sent by the Tribunal to the Builder’s registered business address.

13. The final hearing took place on 21 September 2023. There was no appearance by the Builder. For oral reasons given that day, the Tribunal ordered the Builder to pay the Homeowners $39,001.00 on or before 4 pm on 19 October 2023 (the Tribunal Order).

Set Aside Application

14. On 29 September 2023, the Builder filed the Set Aside Application. The Builder stated that the Tribunal decision was made in his absence which resulted in its case not being adequately put to the Tribunal. In answer to the question “Why were you absent when the Tribunal made the decision”, the Builder stated:

Applicant instructed Marque Lawyers to act on its behalf in the proceedings on 4 September 2023.

On 11 September 2023, Marque Lawyers sent an email to the Respondents advising them of their engagement and that Marque Lawyers intended to seek leave to appear on the Applicant's behalf in the proceedings. This email is enclosed with this application.

The Respondents, at no time after 11 September 2023, advised Marque Lawyers or the Applicant that the proceedings had been listed for final hearing.

It was only on 26 September 2023, at which time the Applicant received a copy of the Notice of Order (made on 21 September 2023) via post, that the Applicant was made aware of the final hearing for the proceedings.

15. In response to the statement “Describe in summary the case (evidence and arguments) you would have put to the Tribunal if you had not been absent?”, the Builder stated:

The Applicant would have sought to put on expert evidence relating to the structural integrity of the works conducted at the premises. The Applicant would have also provided lay evidence from the Applicant's director and primary contractor, Mr Hayden Preece, relating to the works conducted at the premises and the conversations that took place between himself and the Respondents, including any verbal and written instructions that were given to Mr Preece during the course of the works.

16. In the set aside application, the Builder indicates that it does not require an extension of time. That is not correct. I will address that matter below.

17. On receipt of the set aside application, on 4 October 2023 the Tribunal stayed the Tribunal Order and directed the parties to file submissions.

The Builder’s submissions

18. The Builder’s submissions relevantly commence by setting out what it describes as relevant facts. The most relevant of these are the following.

19. Prior to the Directions Hearing, the sole director and representative of the applicant, Mr Preece, advised the respondents that he would be overseas for eight weeks from 15 June 2023.

20. At the Directions Hearing, Mr Preece also advised Tribunal Member Charles that he would be overseas for 8 weeks from 15 June 2023.

21. From 15 June 2023 to about 2 August 2023, Mr Preece was overseas and did not have adequate access to the documents produced or filed by the respondents in the Proceedings during this time.

22. Until the commencement of the Proceedings, neither Mr Preece nor the applicant has been involved in any Tribunal proceedings.

23. From about 2 August 2023 onwards, Mr Preece, on behalf of the Builder, sought to engage legal representation in the Proceedings. At this time, Mr Preece was not aware nor was he in receipt of a copy of the orders made at the Directions Hearing, and as such, was unable to appreciate any default by the Builder of those orders.

24. On 4 September 2023, Mr Preece engaged Marque Lawyers to act on the applicant's behalf in the Proceedings, following which Marque Lawyers:

1. advised the respondents of their intention to seek leave to appear on the applicant's behalf in the Proceedings and requested that a copy of any timetabling orders made in the Proceedings; and

2. commenced taking instructions from the Builder as to its position in the Proceedings.

25. On 12 September 2023, the respondents provided a copy of the orders made at the Directions Hearing to Marque Lawyers and did not advise them of any further orders made regarding the final hearing of the Proceedings.

26. On 26 September 2023, Mr Preece received a copy of the Decision via post.

27. At no time prior to 26 September 2023, were Marque Lawyers or the Builder made aware of the listing of the Proceedings for final hearing on 21 September 2023.

28. The Builder further submits:

1. neither it nor Mr Preece had a sufficient understanding of the requirements and procedural obligations of the orders made at the Directions Hearing, much less of the procedural requirements and obligations of Tribunal proceedings generally;

2. by reason of Mr Preece's absence between June 2023 and August 2023 (and despite the respondents and the Tribunal being made aware of such absence), the applicant did not have sufficient time to comply with (or obtain legal advice as to) its obligations under the orders made at the Directions Hearing;

3. upon his return from overseas, Mr Preece used his best endeavours to engage legal representation for the Builder in the Proceedings and was only able to secure legal representation in September 2023;

4. upon engaging Marque Lawyers, and despite Marque Lawyers taking steps to ascertain the status of the Proceedings from the Homeowners (during which time they were seeking leave to appear on the Builder’s behalf in the Proceedings), the Homeowners did not provide a copy of any listing advice for the final hearing on 21 September 2023.

5. in circumstances where the Homeowners were aware that Marque Lawyers had been engaged by the Builder, the Homeowners were wholly aware that the Proceedings had been listed for final hearing but were not forthcoming on the status of the Proceedings. That is, had Marque Lawyers been made aware of the final hearing on 21 September 2023, Marque Lawyers would have attended the hearing to seek an adjournment of the hearing and an extension of the timetable for the filing of evidence;

6. it has therefore suffered prejudice in the Proceedings by reason of the Decision being made in Marque Lawyers or its own absence at the final hearing on 21 September 2023.

29. In conclusion, the Builder submits that had it been provided with sufficient time and adequate opportunity to put its case to the Tribunal, it would have engaged an expert and prepared and served evidence of Mr Preece.

The Homeowners’ submissions in reply

30. The Homeowners provided lengthy submissions in response. Suffice it to say they object to the proceedings being reinstated. A convenient summary of their submissions appears in their conclusion:

a. Mr Preece was aware that a hearing was to be held and did not make any attempt to find out when it was on so that he could attend.

b. Mr Preece was told at the hearing that the orders would be made and that he would be required to produce documents and obtain an expert report. He has chosen to do nothing to comply with those orders.

c. Mr Preece provided an address for delivery of documents that was not secure and also did not make appropriate arrangements for him to receive the documents.

d. Even when Mr Preece knew that the documents were delivered to the address that he had specified he chose to do nothing to ensure he had access to them when he returned from overseas.

e. Mr Preece received our expert report on 4 June 2023 and was told on 5 June 2023 that he needed to provide an expert report. He has had a significant time to do this and has chosen to do nothing about it.

f. Mr Preece has demonstrated a total disregard for the orders of the court and towards us during the construction of the work and settlement of the dispute.

g. To set aside these orders would be a great injustice to us who have complied with all orders of the tribunal, gone to extreme lengths to have the building works completed and to negotiate a settlement for this dispute.

h. Mr Preece's trip overseas did not impede his ability to resolve this dispute or comply with the orders. The tribunal was aware of his intended absence at the direction hearing and that was taken into account when the orders were made.

i. Mr Preece was told at the directions hearing of the orders that were to be made and that he would be sent a copy. When he apparently did not receive a copy he chose not to follow up and obtain a copy.

j. Throughout the building project and discussions regarding the dispute we found inconsistencies in Mr Preece's dealings. For example, stating that he would be on to the matters on his return from holiday and then hearing nothing more from him. We see no reason why this is going to change now.

k. We have complied with all orders from the directions hearing. We were open, honest and transparent at the hearing in all matters. We updated Ms Tibbey at the hearing on all correspondence since our documents were delivered on 10 July 2023. We have been extremely disadvantaged by Mr Preece's behaviour during the construction of the work and the in the dispute process. To set aside these orders now, when we have done everything we possibly could to reach a conclusion would be unjust, unfair and would cause us further stress and delays in the completion of the building work and rectification of the defects in the building work completed.

l. This project commenced almost 2 years ago. We have been unable to use our back yard since then. We have an unsafe deck with no railing where the stairs were supposed to go. We have been pushing to get the work completed since October 2022 when PreeceBuild last worked on the property. We have been pushing to get the defects rectified I work completed since April 2023. We have done all that has been asked of us, we have always replied to Mr Preece and even made very generous offers to get the work completed. We say that it would be unjust for the orders to be set aside as we finally were given some way forward to complete this building project. To set aside the orders now would cause further delays and is extremely unfair to us.

(emphasis added)

Consideration

31. Clause 9 of the NCAT Regulation provides:

9   Additional power to set aside or vary decision determining proceedings—the Act, s 90(2)(a)

(1) In addition to a power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied if—

(a) all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, or

(b) the decision was made in the absence of a party and the Tribunal is satisfied that the party’s absence has resulted in the party’s case not being adequately put to the Tribunal.

…

(2) The Tribunal may make an order under this section of its own motion or on the application of a party.

(3) Unless the Tribunal grants an extension under the Act, section 41, an application for an order under this section must be made within 7 days after the decision concerned was made.

(4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this section unless the Tribunal has—

(a) given the parties an opportunity to make submissions about the proposed order, and

(b) taken any submissions into account.

(5) A party may not make an application for an order under this section to set aside or vary a decision of the Tribunal if—

(a) an internal appeal or appeal to a court against the decision has been lodged or determined, or

(b) an application for a judicial review of the decision has been made or determined.

(6) A party may not, without the leave of the Tribunal, make an application for an order under this section to set aside or vary a decision of the Tribunal if the party has previously made an application under this section to have the decision set aside or varied.

(7) If the Tribunal sets aside a decision under this section, it may also set aside orders that it made consequent on the decision that has been set aside.

…

(8) Proceedings for this section are prescribed for the Act, section 50(1)(d).

Note—

A hearing is not required for proceedings that are prescribed for the Act, section 50(1)(d).

(9) This section does not limit a power of the Tribunal to set aside, revoke or vary its interlocutory decisions or other decisions that do not operate to determine proceedings.

32. There is no suggestion that the parties have consented to orders to set aside the Tribunal’s decision. Accordingly, the application is considered under reg 9(1)(b) on the basis that the Builder was not present at the hearing. That means the Builder must satisfy the Tribunal of two matters, namely:

1. that the decision was made in its absence; and

2. that its absence resulted in its case not being adequately put to the Tribunal.

33. I am satisfied that that the decision of 21 September 2023 was made in the Builder’s absence.

34. However, I am not satisfied that the Builder’s absence resulted in his case not being adequately put to the Tribunal. That is because the Builder still has not explained what his case would have been in relation to the claims which were the subject of the Tribunal Order in circumstances where:

1. Mr Preece attended the Directions Hearing of 5 June 2023 and knew that as of that day that the Builder was expected to file its documents by 22 August 2023;

2. even accepting that Mr Preece only retained Marque Lawyers on 4 September 2023, the Builder had almost three weeks to start preparing (at the least) a statement of Mr Preece would indicate a defence to the Homeowner’s claim;

3. at all relevant times all Tribunal notices were sent to the Builder’s registered address. The significance of this is that, under s 109X(1)(a) of the Corporations Act 2001 (Cth) for the purposes of any law, a document may be served on a company by leaving it at, or posting it to, the company's registered office.

35. The short point is that the Builder has not provided any evidence, or even a submission, about what he says about the Homeowners’ application, even though he says that since 4 September 2023 Marque Lawyers have commenced taking instructions from the Builder as to its position in the Proceedings. This is in circumstances where the Homeowners rightly emphasise:

1. Mr Preece received the Homeowners’ expert report on 4 June 2023;

2. Mr Preece was told by the Tribunal on 5 June 2023 that he needed to provide an expert report;

3. the Builder has had a significant time to prepare its evidence;

4. the Tribunal was aware of Mr Preece’s intended travel at the time of the Directions Hearing and that was taken into account when the orders were made;

5. Mr Preece was told at the directions hearing the orders that were to be made, and that he would be sent a copy. When he apparently did not receive a copy he chose not to follow up and obtain a copy.

The set aside application was filed late

36. There is one other matter to discuss.

37. The set aside application was supposed to have been filed within 7 days of the Tribunal Order. The decision was made on 21 September 2023, and the set aside application made on 29 September 2023. Accordingly, it was filed 1 day late. Despite the Builder having retained solicitors, this point was not addressed by the Builder, in circumstances where the set aside application form clearly states:

EXTENSION OF TIME

This application must be lodged within 7 days after the decision concerned was made. The Tribunal has the power to extend this time if warranted in the circumstances. If an extension of time is required but no extension is obtained from the Tribunal the application will be dismissed because it is out of time

38. Then, in answer to the question, “Do you require an extension of time” the Builder’s legal representative has indicated “No”.

38. One day may not seem like a long time but, as the Appeal Panel stated in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [21], time limits are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, “these time limits should generally be strictly enforced”.

39. The Appeal Panel further stated that if a time limit is to be extended, the issues to be considered are the length of the delay, the reason for the delay, whether the applicant has a fairly arguable case; and the extent of any prejudice suffered by the respondent.

40. In circumstances where none of these matters have been addressed, there is no utility in extending the time for filing the set aside application. This because (again) the Builder has still not explained what his case (that is, his defence, if any) is. The statutory declaration it did file in support of the set aside application is silent about these matters. Thus, there is no material before me which would allow me to conclude that the outcome of the Homeowners’ application would be different if the Tribunal Order is set aside and the hearing re-listed.

Conclusion

42. In the circumstances, I am not satisfied that the Builder’s absence has resulted in the Builder’s case not being adequately put to the Tribunal.

Orders

43. The Tribunal orders:

1. The time in which to file the set aside application is not extended to 29 September 2023, and the respondent’s application to set aside the Tribunal decision of 21 September 2023 is otherwise dismissed.

2. The order made on 21 September 2023 in matter HB 23/22370 remains in full force and effect.

**********

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: 13 August 2024