Rojas Constructions Pty Ltd v Steven (Appeal) - [2024] ACAT 51

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ROJAS CONSTRUCTIONS PTY LTD v STEVEN (Appeal) [2024] ACAT 51

AA 21/2024 (XD 835/2023)

Catchwords: APPEAL – Civil dispute – application for an extension of time to appeal – criteria for extension of time – merits of proposed appeal – whether dismissing the application for an extension of time to appeal would work an injustice
Legislation cited: Building Act 2004 ss 7, 88
Legislation Act 2001 s 151C
Limitation Act 1985 s 11

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 rr 38, 94
Building (General) Regulation 2008 cl 38

Cases citedConcerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56
Coulton v Holcombe [1986] HCA 33
ECE21 v Minister for Home Affairs [2023] FCAFC 52
Gallo v Dawson [1990] HCA 30
House v R (1936) 55 CLR 499
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
Murad v Assistant Minister for Immigration & Border Protection [2017] FCAFC 73
O’Brien v Komesaroff [1982] HCA 33
Superal-Wallace v Indypendent Pty Ltd & Anor [2016] ACAT 144

Tribunal:Presidential Member J Lucy

Date of Orders:  15 July 2024
Date of Reasons for Decision:      15 July 2024
Date of Publication:  23 July 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 21/2024

BETWEEN:

ROJAS CONSTRUCTIONS PTY LTD ACN 139 445 426
Appellant

AND:

AMANDA LEIGH STEVEN
Respondent

APPEAL TRIBUNAL: Presidential Member J Lucy

DATE:15 July 2024

ORDER

The Tribunal orders that:

The applicant’s application for an extension of time is dismissed.
The appeal is dismissed.
………………………………..

Presidential Member J Lucy

REASONS FOR DECISION

In the reasons below, a reference to ‘ACAT’ or ‘the tribunal’ refers to the ACT Civil and Administrative Tribunal generally. A reference to ‘Appeal Tribunal’ refers to the member who constituted the tribunal and heard this appeal. A reference to ‘Original Tribunal’ refers to the tribunal that made the orders that were under appeal.
The Original Tribunal made orders requiring the appellant (the Building Company), to pay the respondent, Ms Steven (the homeowner), the amount of $25,000 by way of compensation for rectification of structural defects to the property. The Building Company lodged an application to appeal from that decision 20 days after the 28-day period for lodging the application had expired. It has now applied for an extension of time to appeal.
I have dismissed the Building Company’s application for an extension of time because the Building Company has not persuaded me that dismissing the application would work an injustice.

Background

The parties entered into a home building contract on 1 February 2016.
On 10 July 2017, the Building Company issued to the homeowner a certificate of practical completion.
The homeowner obtained a report from George Pudja of Peak Consulting – Building Consultants and Building Investigations dated 11 July 2017 identifying 60 defects (the Building Report). Mr Pudja indicated in the report that he is a licensed builder and stated that the opinions expressed in the report were that of the author and were based on the skills, training, and experience gained throughout 22 years of licensed practice. He provided a copy of his contractor licence at the end of the report.
On 17 July 2017, the homeowner emailed the Building Company’s solicitors, disputing practical completion had been reached due to several defects. She referred in that email to the Building Report. On 25 July 2017, the homeowner emailed the Building Company’s solicitors that report.
On 3 August 2017, a certificate of occupancy and use was issued in relation to the building work. The homeowner received handover and the keys to the property on 14 August 2017.
On 13 November 2017, the homeowner provided the Building Company with a list of defects. She provided it with a further list of defects on 27 May 2018.
On 29 October 2018, the homeowner obtained a quotation from Awatson Industries Pty Ltd to fix the defects (the Quotation). The company quoted $28,376 to remedy a range of internal defects and $22,894 to remedy a range of external defects. The Quotation was not otherwise itemised.

Application to tribunal

The homeowner applied to the tribunal on 2 August 2023, alleging that the Building Company breached the home building contract (original application). She claimed damages for defects and for some other alleged breaches.
On 28 November 2023, the tribunal made directions requiring each party to provide to the tribunal and each other statements, any expert’s report on which the party relied, and other documentary evidence on which the party relied.
On 14 December 2023, the Building Company lodged an application for interim or other orders seeking an order that the proceedings be discontinued on the basis that the homeowner should have used the dispute resolution process set out in the contract. A hearing of that interim application was held on 1 February 2024 at which the Building Company was legally represented. The application was dismissed.
The homeowner relied at the final hearing on documents annexed to her application, including the Building Report, the Quotation, and a witness statement dated 15 January 2024. The homeowner also provided the tribunal and the Building Company with a table headed “Issues list” in which the Building Company had responded on 28 March 2017 to various claims by the homeowner about defects.
The Building Company relied upon witness statements from its general manager, Stephanie Jiminez, and its director and builder, Mauricio Rojas. These statements did not engage with the opinions expressed in the Building Report. The Building Company did not rely upon any expert evidence.
The Building Company also relied upon a table responding to the homeowner’s claims. In that table, the Building Company stated that – in respect of the statutory warranties – the homeowner had until 2 August 2019 to bring her claim (and that she was out of time), whilst acknowledging that her claim was in time for the structural elements. The Building Company did not specify the defects in relation to which it said that the homeowner’s claim was out of time.
A hearing of the homeowner’s building claim took place on 22 February 2024. The homeowner was self-represented, and Mr Rojas and Ms Jiminez appeared for the Building Company. The Building Company’s position at the final hearing was that it had remedied the defects identified.
At the end of the hearing, the Original Tribunal reserved its decision.

Original Tribunal’s decision, orders, and reasons

The Original Tribunal delivered oral reasons for decision at a hearing on 13 March 2024. Ms Jiminez appeared at that hearing for the Building Company and the homeowner appeared in person. On that date, the Original Tribunal ordered the Building Company to pay the homeowner $25,000 by way of compensation for rectification of structural defects to the property.
The Original Tribunal sent the parties the orders by mail on 25 March 2024. It sent the orders to the address the Building Company had provided to the tribunal in its notice of new representation form on 15 February 2024.
The Original Tribunal’s reasons for decision are dated 28 March 2024.
On 2 April 2024, the Original Tribunal published the reasons for decision. Due to an administrative error, the reasons were not provided to the parties beforehand or at that time.
The reasons for decision were emailed to the parties on 10 April 2024.
On 12 April 2024, the mail which the tribunal had sent to the Building Company was returned to sender.

Application for appeal

On 30 April 2024, the Building Company lodged its application for appeal. It did not, at that time, seek an extension of time to appeal. The reasons why the appeal should proceed (or the grounds) were identified as follows:
1.       The Tribunal erred in relying on evidence being the Building Inspector’s Report … because it was unreliable.
2.       The Tribunal erred in relying on evidence being the quotation of AW Watson … because it was unreliable.
3.       The Tribunal erred in the characterisation of the building defects at [55] as:
a.The driveway and floor tiling are not structural defects pursuant to section 38 of the Building (General) Regulations 2008.
An application for appeal within the tribunal must be lodged no later than 28 days after the day the orders of the Original Tribunal in the original application were made, or any further time that the tribunal allows.[1] The 28-day period for lodging an appeal commenced on the day the Original Tribunal made its orders, being 13 March 2024. It ended on 10 April 2024.
[1] ACT Civil and Administrative Tribunal Procedures Rules 2020 rule 94
On 29 May 2024, the Appeal Tribunal held a directions hearing. At that directions hearing, the homeowner objected to the Appeal Tribunal hearing the appeal on the basis that the Building Company’s application for appeal was out of time. The Appeal Tribunal made directions permitting the Building Company to file an application for an extension of time with supporting material and the homeowner to respond.
On 7 June 2024, the Building Company lodged an application for an extension of time to appeal. It relied upon a statement of Ms Jiminez of the same date. In summary, Ms Jiminez stated that:
(a)She found it difficult to catch everything which was said by the member who delivered reasons and she had her 7 month old baby with her and was unable to write down what was being said.
(b)The Building Company did not receive an email providing the Original Tribunal’s orders or reasons until 10 April 2024.
(c)She had called the tribunal on about 20 March 2024, 28 March 2024, and 10 April 2024 asking for the orders and reasons.
(d)During the first two calls, she was informed by the tribunal that the reasons should be published soon, and that the tribunal would accept appeal applications up to 56 days from the date of the reasons.
(e)After she received the Original Tribunal’s reasons on 10 April 2024, she reviewed them and discussed them with the Building Company’s director, Mauricio Rojas.
(f)On 26 April 2024, she sought legal advice about whether the Building Company had reasonable prospects of an appeal.
The homeowner provided a response to the extension of time application on 17 June 2024. In her response, she claimed that Ms Jiminez and Mr Rojas “submitted unsubstantiated and proven false allegations in their Witness Statements and Ms Jiminez submitted proved falsified manufactured evidence.” She also submitted that multiple documents submitted by the Building Company had been proven to be fraudulent. The homeowner complained of various procedural non-compliances by the Building Company with the Original Tribunal’s directions and orders.
The homeowner stated in her response that the Building Company should have made itself aware of, and complied with, the process on the tribunal’s website. The website states:
How long do I have to appeal?
An application for appeal [PDF 111KB] must be lodged no later than 28 days after the original ACAT decision is made.
What if I need an extension of time?
If you are still within the 28-day timeframe, you should lodge your application, but tell us (in writing) that you will be applying for leave (asking for permission) to lodge an amended application for appeal. Tell us:
· the reasons why you will need to amend your application for appeal (for example, you are waiting for a statement of reasons for the original decision)
· when you think you will be seeking permission to amend your application for appeal.
You can tell us this information either by email (attaching the application for appeal) or on the application for appeal in the box called Interim or Other Emergency Orders Sought.
When the time comes for you to amend your application for appeal, you will need to lodge an application for interim or other orders [PDF 56KB] to seek permission to amend your appeal. [2]
[2] ‘Appeal an ACAT decision’, ACT Civil and Administrative Tribunal Website (Web Page) <>
The homeowner submitted that the Building Company should have filed an application for interim orders (seeking an extension of time) prior to the expiration of the 28 days. She said that she would suffer prejudice if the extension of time were allowed, because she continues to suffer post-traumatic stress and constant anxiety due to this matter.
The homeowner also complained that, although she had provided the Building Company with her account details, it had not paid her damages in compliance with the Original Tribunal’s orders.
The hearing of the Building Company’s application for an extension of time was held on 18 June 2024. Mr Seneviratna, a solicitor, provided written submissions and made oral submissions on behalf of the Building Company. He confirmed that the Building Company had not complied with the Original Tribunal’s order requiring it to pay the homeowner $25,000 and had not sought a stay of that order.
The homeowner appeared in person at the hearing and made submissions.
At the end of the hearing, I reserved my decision.

Relevant principles

As indicated above, rule 94 of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (the Rules) provides that an application for appeal may be made within 28 days or within “any further time that the tribunal allows.” A note to the rule provides: “For rules about extending time, see r 38 (Extension of time for making application).” Under sub-rule 38(2) of the Rules, the Tribunal may, by order, extend the time for making an application to the Tribunal. It is possible (notwithstanding the note in rule 94) that it is rule 94, which specifically applies to appeals, and not the more general rule 38, which is the source of power to extend time on an appeal.
I note that sub-rule 38(4) provides that the Tribunal may extend the time for making an application for review of a decision by up to 56 days. Although an “application” is defined in the Dictionary to the Rules to include an application for appeal, there may be some doubt as to whether an “application for review” includes an “application for appeal.” It is not necessary to decide that issue in this case, as the application for appeal was less than 56 days out of time. It is plain that the Appeal Tribunal has power to extend time in this case, either under rule 92 or rule 38.
The applicable principles when considering an application for an extension of time are well established. President Crebbin stated in Superal-Wallace v Indypendent Pty Ltd & Anor [2016] ACAT 144 at [6] that the relevant principles are those summarised by Refshauge J in Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority)[3], and are as follows:
[3] [2015] ACTCA 56 at [20]–[21]
1.     Time limits are important and must, prima facie, be obeyed.
2.     In order to justify a court acceding to an application to extend time, there must be some material on which the court can exercise its discretion.
3.     Such an application should only be granted if, having regard to the important value of finality in litigation and the need for time limits to be respected, it is proper to do so.
4.     There should be an explanation for the delay, as to which any action (other than to appeal) that has been taken by the applicant is relevant.
5.     The court must consider any prejudice to the respondent in defending the proceeding, as caused by the delay, and any such prejudice will tell against the extension.
6.     The mere absence of prejudice is not enough to justify the extension of time.
7.     The merits of the appeal itself must be taken into account in deciding whether an extension of time should be granted.
8.     The court, on considering an application for an extension of time within which to appeal, should not decide the appeal and, in an appropriate circumstance, an arguable case may be sufficient, though in the case of long delay it may be necessary to show that the applicant has a strong case.
9.     Nevertheless, the application is to be determined by the court’s view of the demands of justice in accordance with a broad judicial discretion and not by the mere application of a verbal formula.
10.    In particular, the court will look, above all else, to determine whether there has not been and will not be, if the application is refused, a miscarriage of justice which will always be an overriding consideration.
I have applied those principles in this matter.

Consideration

Extent of the delay

The application for appeal was filed 20 days after the end of the 28-day period for lodging an appeal, on 30 April 2024.
The period of 20 days is not an extensive delay, but nor is it insignificant.
The application for an extension of time was made on 7 June 2024, about 86 days after the Original Tribunal’s orders. However, the Building Company was entitled to apply for the extension of time even though the 28-day appeal period had ended.[4] I have not treated the delay in applying for an extension of time as being a factor weighing against the grant of an extension of time.
Explanation for the delay
[4] Legislation Act 2001 s 151C(2)
There were some aspects of the Building Company’s explanation for the delay which were reasonable and other aspects which were less compelling.
It is generally reasonable to review the Original Tribunal’s reasons for decision and to seek legal advice before deciding whether to appeal (as Ms Jiminez said the Building Company had done). However, two of the alleged errors identified in the Application to Appeal were that the Original Tribunal erred in relying upon the Building Report and Quotation because they were unreliable. The Original Tribunal’s decision to admit that evidence, despite the Building Company’s submission that it was unreliable, was made on the day of the hearing (that is, on 22 February 2024). There was no competing evidence from the Building Company.
At the hearing of the Building Company’s application for an extension of time, Mr Seneviratna, the solicitor for the Building Company, explained the Building Company’s argument as being that the Original Tribunal should not have relied on the Building Report or the quotation because of their age and because their authors were not made available at the hearing. That argument could have been made without the reasons for decision. Legal advice about that argument could have been sought promptly after the orders and oral reasons were handed down.
It may be accepted that Ms Jiminez could not write down what the member said during the delivery of oral reasons, whilst Ms Jiminez was caring for her baby, as she explained. However, the Building Company was given an opportunity to attend the delivery of oral reasons and could have done so by instructing a lawyer or another person to attend. Its decision to have the hearing attended by its general manager whilst she was looking after her seven-month baby does not assist it in its application for an extension of time. Had a solicitor attended the tribunal on the Building Company’s behalf, the solicitor would have been in a better position to provide advice about possible grounds of appeal at an early point. Alternatively, had a lay person attended on the Building Company’s behalf who did not have responsibility for caring for a baby, that person may have been able to take detailed notes.
The Building Company has not provided an adequate explanation for why it took sixteen days to seek legal advice about appealing the decision after receiving the Original Tribunal’s written reasons, when it should have been plain to it that the appeal period (which expired on the day that it received those reasons) had ended and that there was a need for expedition.
As indicated above, Ms Jiminez’s evidence is that registry staff told her that the tribunal would accept appeal applications up to 56 days from the date of the decision. Although the homeowner was not a party to that conversation, she disputes that evidence. Her evidence is that a registry staff member told her that registry staff advise the public that people have 28 days from the date of the decision to file an appeal and refer people to the tribunal’s website for further information. The evidence of Ms Jiminez and the homeowner as to what each was told by a registry staff member is hearsay. Whilst the evidence is admissible, it needs to be treated with some caution.

I accept that a registry staff member mentioned 56 days to Ms Jiminez when she telephoned. However, I am not persuaded that the registry staff member told Ms Jiminez she had 56 days to appeal. It is more likely that the registry staff member told Ms Jiminez that there was a 28-day appeal period but that the tribunal had a discretion to extend the time for making an application for review by up to 56 days. Ms Jiminez’s evidence that she was told that “the Tribunal would accept appeal applications up to 56 days from the date of the reasons” is consistent with a registry staff member also telling her that the appeal period was 28 days and that the company would need an extension of time for an appeal filed after that.
Irrespective of what registry staff told Ms Jiminez, the Building Company had an obligation to inform itself of the Tribunal procedures and rules which govern appeals. The information is, as the homeowner pointed out, on the tribunal’s website. It is easily accessible. In addition, although the Building Company was not represented at the hearing, it had engaged solicitors in relation to the homeowner’s claim from time to time since 2017, and solicitors represented it on its interim application. It could have sought legal advice about the appeal period if it was in doubt.
Merits of the proposed appeal
Reliability of evidence relied upon
As indicated above, the Building Company’s first two proposed appeal grounds are that the Original Tribunal erred in relying on the Building Report and the Quotation, because they were unreliable.
At the hearing of the extension of time application, the Building Company’s solicitor, Mr Seneviratna, informed the Appeal Tribunal that the Building Company had objected to the evidence of the Building Report and the Quotation at the hearing, but had been overruled. This is consistent with the Original Tribunal’s reasons for decision. The Original Tribunal recorded at paragraph 47 of its reasons that the Building Company did not accept that the Building Report and the quotation could be relied upon to substantiate the alleged defects. It also recorded at paragraph 48 that it had offered the Building Company an adjournment of one to two weeks to review the evidence more carefully and to prepare a response. The Original Tribunal stated in the same paragraph:
The respondent declined this offer stating that this exercise would be too time consuming, requiring him to compare the table prepared by the respondent dated 28 March 2017 with the material from the Building Inspector’s Report and the Quotation.
At the hearing of the extension of time application, I asked Mr Seneviratna whether the Building Company’s position was that the Original Tribunal’s reliance on the Building Report and the Quotation was an error of law or an error of fact. He replied that it was an error of law.
A challenge to the weight a decision-maker has given to a document or piece of evidence generally does not identify an error of law. The appellant must show that the decision was unreasonable or plainly wrong[5] or (which may often be the same thing) that the decision-maker “failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.”[6]
[5] House v R (1936) 55 CLR 499 at 504–505
[6] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [15] (Mason J)
The submission that the age of the Building Report makes it unreliable is not a strong one. The closeness in time between the completion of the build and the report makes it more likely that any defects identified in the report were caused by the Building Company, rather than by some intervening factor. As the Original Tribunal found in its reasons at paragraph 51, the builder’s qualifications and the circumstance that he had no conflict of interest support the conclusion that the report is reliable.
The argument that the Quotation is unreliable due to its age is more persuasive, since the cost of remedying the defects is likely to have changed since 2018. The Original Tribunal was alive to this, however, and observed that the cost of living and the cost of construction had risen significantly since that time, a matter favouring the Building Company. That finding was not challenged in the Application for Appeal. The Building Company did not provide any competing quotations addressing the cost of remedying the defects and it was not suggested that the Building Company had submitted at the original hearing that the figures in the Quotation were unreasonably high.
The argument that weight should not have been given to the Building Report and Quotation because their authors were not made available for cross-examination at the hearing would be stronger if the Building Company had requested the homeowner to make them available. When I asked Mr Seneviratna whether the Building Company had requested that the authors of the documents be made available for cross-examination, he said that it had not. However, he said that his instructions were that the first time Ms Jiminez saw the Building Report was at the hearing.
The Original Tribunal found that the homeowner had emailed the Building Company’s solicitor a copy of the Building Report on 25 July 2017. That factual finding was not challenged by the Building Company in its Application for Appeal, and it is supported by documentary evidence. The Building Report was annexed to the homeowner’s application to the tribunal made on 2 August 2023, which was sent by the tribunal to the Building Company on 10 August 2023. The Original Tribunal’s reasons record that, at the original hearing, Mr Rojas said he had not seen the Building Report or the Quotation and the Original Tribunal adjourned to give him time to read them. The Original Tribunal noted, however, that those documents had accompanied the homeowner’s originating documents which the tribunal served on the Building Company.
For these reasons, Ms Jiminez’s evidence that she saw the Building Report for the first time at the hearing is not a reasonable explanation for the Building Company not requesting the author of that report to be made available for cross‑examination. It suggests, instead, that neither Mr Jiminez nor Mr Rojas had read the documents accompanying the application before the hearing.
For these reasons, I am not persuaded that the Building Company has a reasonably arguable case that the Original Tribunal erred in law by placing too much weight on the Building Report or the Quotation.
Characterisation of defects as structural
The Building Company’s other ground of appeal is that the Original Tribunal erred in characterising the driveway and floor tiling as structural defects. The reason why this alleged error, if established, would be significant is that, as the Original Tribunal found, the applicant was out of time to claim for non-structural defects.
The homeowner claimed that the Building Company had breached the contract and had breached statutory warranties under section 88(2) of the Building Act 2004 (within Part 6 of that Act). Clause 38(1) of the Building (General) Regulation 2008 provides as follows:
38 End of statutory warranties—Act, s 88 (4)
(1)The period for the end of a warranty is—
(a)for residential building work in relation to a structural element of a building—6 years after the completion day for the work; or
(b)for residential building work in relation to a non-structural element of a building—2 years after the completion day for the work.
(2)In this section:
non-structural element, of a building, means a component of the building that is not a structural element.
structural element, of a building, means—
(a)a load-bearing component of the building (whether internal or external) that is essential to the stability of the building or part of it; or
(b)a component (including weatherproofing) forming part of the external walls or roof of the building.
Examples—par (a)
a foundation, floor, wall, roof, column or beam
I asked Mr Seneviratna whether the Building Company had submitted, at the original hearing, that the defects in the driveway and floor tiling were not structural defects. Mr Seneviratna initially responded that he was unsure. I pointed out that, in the Building Company’s table, reference was made to the circumstance that the homeowner’s claim was out of time insofar as it concerned non-structural defects (as the Original Tribunal found). However, the table does not identify the defects said to be non-structural.
The homeowner informed the Appeal Tribunal that the Building Company did not raise at the hearing that the tiles or driveway were not structural.
There is no evidence as to what was said at the original hearing as no transcript has been provided. In circumstances where the homeowner denies that the point was raised, I cannot be satisfied that this submission was made at the original hearing.
Leave to argue a ground of appeal not raised before the Original Tribunal should only be granted if it is expedient in the interest of justice to do so.[7] The Building Company’s likely need to obtain leave to argue its ground that the defects in the driveway and floor tiling were not structural is relevant to considering the merits of that proposed ground of appeal.
[7] See O’Brien v Komesaroff [1982] HCA 33 at [20]-[22]; ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [64]
In Coulton v Holcombe [1986] HCA 33, Gibbs CJ, Wilson, Brennan, and Dawson JJ said of an appeal by way of rehearing (such as this one) that its powers are ordinarily to be exercised within the framework of the issues determined at first instance, for the following reasons:
To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this court has firmly maintained the principle that the point cannot be taken afterwards …
Leave is more likely to be granted to permit a fresh issue to be raised on appeal where the new point turns on a question of law.[8]
[8] Murad v Assistant Minister for Immigration & Border Protection [2017] FCAFC 73 at [20] (Griffiths and Perry JJ)
The submission that the Original Tribunal was wrong to characterise the floor tiling as a structural defect does not raise only a question of law; it depends to some extent on evidence. The Original Tribunal relied upon the Building Report to conclude that each of the floor tiling and the driveway was a “structural element of a building.”[9] The Building Report stated that there were no apparent control joints to the driveway and no isolation joints at the junctions of the driveway, contrary to Australian Standards. It also stated that the tiling to the living areas had no visible expansion joints, contrary to Australian Standards, which were required where stress might reasonably be expected. The Building Company did not provide any expert evidence to the contrary. The circumstances that the issue depends in part upon evidence, and that the matter was not argued before the Original Tribunal, are factors which tend against the Building Company being granted leave to argue this ground on appeal.
[9] Building (General) Regulation 2008, cl 38(2)(a)
Subject to what follows, in the absence of evidence that the defects in the driveway and the floor tiling are non-structural, the Building Company does not have an arguable case that the Tribunal made an error in finding that those defects were within structural elements of a building within clause 38(1) of the Building (General) Regulation 2008.
I note that there is an argument, which was not advanced by the Building Company on appeal or considered by the parties or the Original Tribunal at the original hearing, that the driveway is not an element of a building at all, such that the statutory warranties under the Building Act 2004 do not apply to it.[10] If that argument had have been made and accepted at the original hearing, however, the claim could be dealt with as a breach of contract claim and it may be that a six year limitation period would apply.[11]
Prejudice to respondent
[10] The term “building” is defined in s 7 of the Building Act 2004 to include a structure on or attached to land, but not to include a driveway, if on the ground and not inside a building
[11] Limitation Act 1985 s 11
I have considered whether there is any prejudice to the respondent caused by the delay. The homeowner stated that she continues to suffer post-traumatic stress and constant anxiety due to this matter. I accept that her evidence that the application to appeal has caused her anxiety and stress, but I cannot be satisfied that it has exacerbated any psychiatric condition without medical evidence.
The relevant question is whether the delay itself has caused the homeowner any prejudice. I am satisfied that the delay has increased the homeowner’s stress and anxiety, because the application for an extension of time has created uncertainty and she has been frustrated by the Building Company’s non-compliance with the tribunal’s procedures when making that application. However, I have not given this factor a lot of weight, because the homeowner’s stress appears to be mainly due to the appeal itself, rather than to the delay in bringing it. Further, I am not satisfied that the delay in lodging the appeal has put the homeowner at a disadvantage in responding to the appeal.
The homeowner’s allegations of fraud have not been substantiated on the evidence before me and I have not taken them into account.

Interests of justice

The critical question when determining an application for an extension of time is whether it is in the interests of justice to grant the application. The Appeal Tribunal would need be satisfied, before granting an extension of time, that strict compliance with the rules would work an injustice upon the Building Company. In determining whether this is the case, the Appeal Tribunal is entitled to have regard to the history of the proceedings, the conduct of the proceedings, and other matters referred to above.
In Gallo v Dawson [1990] HCA 30, McHugh J made the following observations about the principles governing applications to extend time under a court rule permitting a court to grant such an application:
That rule provides that the Court or a Justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: … This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work 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 extension of time: … When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: ... It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: … It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. (Citations omitted)
Having regard to the relevant matters discussed above, I am not persuaded that dismissing the Building Company’s application for an extension of time to appeal would constitute an injustice.
I have found that the alleged errors the Building Company has identified do not constitute reasonably arguable appeal grounds. That of itself means that it is not in the interests of justice to extend time for the Building Company to appeal.
If I am wrong about that, I still do not consider that it is in the interests of justice to extend time.
The history of the matter indicates that the Building Company did not provide any expert evidence to the Original Tribunal. It was given an opportunity for an adjournment, so that it could review the homeowner’s evidence more carefully and prepare a response, but declined the opportunity, stating that reviewing the homeowner’s evidence would be too time consuming. The Original Tribunal also observed, at paragraph 53 of its reasons, that Mr Rojas, who was appearing for the Building Company and its director, did not wish to engage. It would not be fair to the homeowner, in those circumstances, to allow the Building Company additional time to appeal for the purpose of making new arguments about the homeowner’s evidence and the characterisation of particular building defects.
There is no evidence that the Building Company made oral submissions at the hearing to the effect that the driveway and the floor tiling were not structural defects. Given the Original Tribunal’s observation that the respondent maintained that any defects raised had been remedied, it appears likely that it did not. In light of the High Court’s observation that “[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial,”[12] I consider that it would be unfair for the Building Company to rely on this ground of appeal.
[12] Coulton v Holcombe [1986] HCA 33 at 9
Whilst the Building Company raised the reliability of the Building Report and the Quotation at the original hearing, there is nothing to suggest that it objected to the documents on the grounds that the authors of the documents had not been made available for cross examination. Had it done so, the Original Tribunal could have considered telephoning the authors of those documents or adjourning the hearing so that they could be made available. It would not be fair to the homeowner to allow the Building Company to raise this issue for the first time on appeal.
For all of these reasons and weighing up all of the relevant factors discussed above, I am not satisfied that strict compliance with the rules would work an injustice upon the Building Company or that it would be in the interests of justice to grant its application for an extension of time.
Accordingly, I have dismissed the Building Company’s application for an extension of time to appeal.
The appeal is dismissed.
………………………………..

Presidential Member J Lucy

Date of hearing:	18 June 2024
Solicitors for the Appellant:	Mr B Seneviratna, Trinity Law
Respondent:		In person