Strangas and Son Building Contractors Pty Ltd v Lim

[2012] NSWDC 72

District Court

New South Wales

Medium Neutral Citation:

Strangas and Son Building Contractors Pty Ltd v Lim [2012] NSWDC 72

Hearing dates:

30 April - 2 May 2012

Decision date:

02 May 2012

Before:

Knox SC DCJ

Decision:

1. Appeal dismissed

2. Appellant to pay Respondent's costs as agreed or assessed

Catchwords:

ADMINISTRATIVE LAW - Appeal from Consumer, Trader and Tenancy Tribunal - Power of District Court to deal with matters of procedural fairness under Section 67 of Consumer, Trader and Tenancy Tribunal Act 2001 - Failure to grant adjournment by Member - Delay in giving decision by Tribunal

Legislation Cited:

Civil Procedure Act 2005
Consumer, Trader and Tenancy Tribunal Act 2001
Courts and Crimes Legislation Amendment Act 2008
Supreme Court Act 1970

Cases Cited:

Edyp v Brazbuild Pty Ltd [2011] NSWCA 218
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
Sullivan v Department of Transport (1978) 20 ALR 232
Dayeian v Davidson [2010] NSWCA 42; (2010) 76 NSWLR 512
Field v Dettman [2011] NSWDC 125
Killick v McPherson [2009] NSWDC 134; (2009) DCLR (NSW) 298
Lazic v Pacey [2009] NSWDC 72; (2009) DCLR (NSW) 24
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
Solicitor General; Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 (2005); 228 CLR 470
Italiano v Carbone [2005] NSWCA 177
Newton v Ellis [2012] NSWCA 106
College of Financial Studies Pty Ltd v Tabbouche [2005] NSWSC 682
Lloyd v Veterinary Surgeons Investigation Committee [2005] NSWCA 456; (2005) 65 NSWLR 245
Harmer v Hare [2011] NSWCA 229
Department of Education and Training v Sinclair [2005] NSWCA 402
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

Texts Cited:

Second Reading Speech, Courts and Crimes Amendment Bill 2008 (NSW), Legislative Council (24 June 2008, the Hon John Hatzistergos, Minister for Justice)

Category:

Principal judgment

Parties:

Strangas and Son Building Contractor Pty Ltd (Appellant)
Gay Lim and Kuang Min Kim Alex Ting (Respondents)

Representation:

Mr D O'Connor (Appellant)
Mr R Jefferis (Respondents)
Brischetto and Ford Solicitors (Appellant)
Ms Gay Lim (Respondents)

File Number(s):

DC 2011/331281

 Decision under appeal 

Citation:

Strangas and Son Building Contractors Pty Ltd v Lim and Ting (Home Building) [2011] NSWCTTT 440

Date of Decision:

2011-09-21 00:00:00

Before:

Senior Member R Buckley

File Number(s):

HB 2009/50624
HB 2009/52201

Judgment

1. HIS HONOUR: These remarks will be delivered on an extempore basis following the conclusion of submissions. I will proceed on that basis for a number of reasons. Firstly, there have been a number of delays in this matter since the proceedings were commenced in the Tribunal below. The original building contract seems to have been in April 2007 and there have been a number of case management mentions of this matter both in the Consumer, Trader and Tenancy Tribunal as well as in this Court.

1. In addition to those matters, the parties are present, I have been assisted by the submissions made and I am satisfied all the issues have been ventilated. Further, the Civil Procedure Act 2005 mandates a just, quick and fair resolution of these proceedings.

1. In my view that also governs the handing down of decisions, in matters such as this, as soon as possible.

Proceedings

1. This is an appeal commenced by way of an amended summons filed 13 April 2012. The Appellant appeals against the decision of Senior Member Buckley ("the Member") of the Consumer, Trader and Tenancy Tribunal ("CTTT"), following a hearing which took place on 22 and 23 November 2010.

Background

1. The Respondents Dr Ting and Ms Lim are the owners of a property in the Municipality of Burwood. They are married. They sought and obtained a development application for the renovation and extension of Dr Ting's property at that address. While there is some dispute as to the amount actually involved, the scope of the work and the overall quantum is said to be in the order of $400,000.00. The contract for the work envisaged a completion period of thirty weeks, although there was some different timetable subsequently adopted.

Grounds of Appeal

1. The amended grounds of appeal are as follows:

(1) The Plaintiff makes application to appeal the decision of senior member Buckley pursuant to section 67(1) of the CTTT Act.

...

(4)   Considering the delay of 10 months in delivering the judgment the Plaintiff asserts that the Member erred at law regarding his findings and his approach to the evidence and the credibility of Kyriakos Strangas on behalf of the Plaintiff.

(5)   The decision is unreasonable in that it make errors in the conclusion of amounts owed pursuant to the Scott Schedule and that the matter should be remitted to the CTTT for rehearing pursuant to section 67(3)(b) of the CTTT Act.

(6)   The presiding member failed to give adequate reasons for the conclusion that the builder was an unsatisfactory witness.

(7)   The defendant builder was prejudiced by the failure of the presiding member to grant an adjournment for the consideration and reply to further evidence adduced by the Plaintiff during the proceedings.

Evidence

1. The hearing of this matter was allocated to this court on the basis of a two-hour estimate. That was clearly inadequate, not only because of the substance of the matter but also, and in particular, given what the parties asked me to read.

1. The parties have asked that the following documents be read:

(1)   The amended summons

(2)    The affidavit of Kyriakos Strangas sworn on 2 February 2012 annexing the decision of the Member and the transcript of those proceedings.

(3)    Submissions of the Appellants

(4)    Submissions of the Respondents

(5)    Affidavit of Gay Lim sworn 27 February 2012.

Tribunal Decision and Chronology

1. The decision was handed down on 21 September 2011 following a two-day hearing which was conducted on 22 and 23 November 2010.

1. In the course of a comprehensive judgment the Member dismissed the application by Strangas and Son Building Contractors Pty Ltd ("Strangas") and ordered that Strangas pay Ms Lim and Dr Ting the amount of $89,769.00 immediately, together with costs as assessed or agreed. There were further conditions which are not relevant for the purposes of this appeal.

1. One of the issues in the proceedings was whether there had been a repudiation of the contract by the builder. The Member accepted that the basis for the termination of the contract was justified (paragaph 29).

1. The proceedings were conducted on the basis that Strangas' legal representative gave notice that the builder's representative would not be calling any evidence in respect of its application or making any submission thereafter. Ultimately Dr Ting and Ms Lim gave evidence as did Mr Strangas. The only expert evidence was from Mr Monteith.

1. The judgment sets out the Member's assessment of the evidence given in relation to various aspects of the chronology and the contract works completed, as well as the course of contact and conduct by the respective parties.

1. It appears from the affidavit of Ms Lim that the hearing followed various case management directions hearings conducted at the CTTT commencing 7 December 2009. That is as could be expected in any court or tribunal adopting proper case management procedures. Ms Lim's evidence is also that there were specific directions made on 19 August 2010 for Strangas to file expert evidence and the schedule in reply as well as any other witness statements. Ms Lim, who is a solicitor, states that she drew this to the attention of the Appellant's solicitors in September 2010, over two months prior to the hearing.

Summary of Submissions

1. In terms of the summary of submissions on which this appeal proceeded, Strangas' submissions as the Appellant are that this Court has jurisdiction to hear the appeal based on errors of law constituted as follows:

(1)   There was a failure to grant an adjournment by the Member.

(2)   There was a misconstruction of the contract in respect of two particular terms:

(a)   That the Member misconstrued an obligation in terms of payment obligations to Burwood Council in relation to work on footpaths in or adjacent to the property. In short summary, the Member in para 31(i), item 31, is said to have misconstrued an obligation to the owners when the obligation was, in fact, one on the builders which Strangas had in any event paid. That was said to be about $8,250;

(b)   There were errors in the double handling of the Goods and Services Tax (GST) amount and there was an error of law in that there was no evidence to justify the finding of an obligation to pay GST in the amount suggested. The GST amount is said to be $3,530.06. This is evidence introduced after the hearing. It is said to come from the relevant builder's quote.

The adjustments sought by the Appellant total therefore $11,780.06.

1. Counsel have been unable to agree on those matters or the effect of them. The Appellant submits that those errors constitute an error of law warranting a complete rehearing, in the alternative a rehearing on those specific matters only. The Respondent disputes that those matters can be taken into account in these proceedings (see below in relation to the heading "Alteration to Scott Schedule Amounts"). Further, that the ground of the appeal (Ground 5), only asserts that the decision is "unreasonable".

(3)   The third basis for the submissions is that there was an unreasonable delay in the handing down of the judgment, being some ten months. This delay is said to constitute an error of law, particularly in the circumstances and context that the Member made character and credit findings against Strangas - it is submitted without any apparent justification for those findings.

This is asserted and submitted to be a breach of the provisions of s 49 of the CTTT Act, in particular subs 49(3)(b) and (c) in failing to provide reasons.

Introduction of Additional Material

1. The transcript of 23 November 2011 indicates that at the outset of the proceedings on the second day, Mr Jefferis, in response to inquiries from the Member, adduced additional documentation in the form of a series of payment certificates. That reflected work done by a remedial builder under what was referred to as the "Bescorp Contract" between Bescorp and the Respondents or at least Ms Lim.

1. The Bescorp quotation was part of the documentation which had been filed in the Tribunal in 2009 and served on Strangas. The introduction of that material was relevant to the main ground of appeal, namely, that Strangas and his legal representatives were prejudiced by its introduction and needed an adjournment to properly consider it.

1. In relation to the question of the adjournment, the introduction of this material then becomes the cause of the main complaint.

1. The Appellant submits in written submissions filed 5 March 2012 that:

"an application to adjourn the matter was made on the first day of hearing. In order for the plaintiff in these proceedings to consider the material it had not seen before which was to be tendered by the defendants."

1. At the end of the first day (transcript 22/11/2010, pp 119120) the Member said that he wished to compare what was in the contract and the invoices, as well as the Scott Schedule.

1. Mr Apostolakos, the solicitor then briefed before the CTTT for Strangas, asked whether he would be given some time to consider those reports to which the Member replied, "Yes absolutely".

1. The Member said:

"I want to give Mr Apostolakos some time with regard to the Bescorp documents because he's been caught by surprise in relation to that evidence so I'd like him to have a bit of time to look through it and get instructions in regards to it."

Mr Apostolakos said:

"Member, if I could be so bold, it is likely that I will need some time to consider this evidence. Would it be preferable to adjourn until tomorrow?

Member: No.

Mr Apostolakos: No problem.

Member: I wish to finish the evidence."

Effectively, however, there was an adjournment until the following morning.

1. Mr Apostolakos also said:

"We need a substantial amount of time to go through these documents. When I say 'a substantial amount' I am not suggesting weeks or months but I would like the opportunity of my client going through it and myself going through it obtaining instructions and if necessary make some further inquiries. This is the first time I have seen these documents."

1. In response to that comment, the Member said (transcript 23/11/10, p 2, line 27 and following) that he would allow further time to read the material for about fifteen minutes. No time for the adjournment sought was specified in Mr Apostolakos' comments other than "a substantial amount of time".

1. The Member also pointed out that the Bescorp quotation was a part of and had been part of the applicant's evidence since September 2011. It was clear Mr Strangas had read that report. He said he had discussed the report with an expert (transcript 22/11/10, p 79.)

1. Ms Lim, who is by occupation a solicitor, with a current practicing certificate, was then taken in chief to various aspects of the documentation and was further cross-examined.

1. Against that background it is submitted (Appellant's submissions paragraph 25), that the builder had no opportunity to review, pass comment on, nor provide his own expert evidence as to the reasonableness or otherwise of the new material. It is further submitted that in the circumstances, that was highly prejudicial and that the rules of natural justice require that the adjournment should have been granted.

1. The submissions go on to assert (paragraph 26) that:

"As with any building matter a builder completing works commenced by someone else will always charge more. As such the subsequent invoice can be used as a guide as to what the original works would have cost, would have inevitably been wrong and overpriced. The builder was never afforded the opportunity to make this point through appropriate evidence in reply."

There is no evidence to support this assertion.

1. Counsel then submits that the Appellant was prejudiced by not being able to challenge the Bescorp figures.

1. A complaint is also made that the failure to grant the adjournment meant that Strangas was unable to properly cross-examine the Plaintiff's expert, Mr Monteith, whose report is said to have been based on the Bescorp quote. Counsel submits that Strangas did not know that Bescorp was the remedial builder. That fact is used as the basis for a further attack on the report, namely, that Bescorp was an interested party and that the quotation was thereby not independent. It is then submitted that the report of Mr Monteith is consequently affected and is in breach of the Code of Conduct for Expert Witnesses.

Respondent Submissions

1. The Respondent refers to the provisions of s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 ("the Act"), which limits the District Court's jurisdiction to matters where the Tribunal decides a matter with respect to a matter of law. Those oral submissions have been amplified by extensive written submissions.

1. The Respondent submits that the only specified error of law relates to the ten-month delay of the decision.

Legislation

1. Section 49, Notice of decisions and reasons:

...

(2) Any party may, within 14 days of receiving notice of the decision, request the Tribunal, in the manner prescribed by the regulations, to provide a statement of reasons for its decision. The statement must be provided within 28 days after the request is made.

(3) The statement may be brief but must:

(a) set out the decision and the reasons for it, and

(b) set out the findings on any material question of fact, and

(c) refer to the evidence or any other material on which the findings of fact were based.

1. Section 67(1), Appeal against decision of Tribunal with respect to matter of law:

If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the District Court against the decision.

1. Section 67 was amended by the Courts and Crimes Legislation Amendment Act 2008 which came into force on 1 July 2008. The relevant schedule transferring the right of appeal from the Supreme Court of New South Wales to the District Court of New South Wales, on a question with respect to a matter of law, commenced on 1 September 2008.

Law

1. In terms of law, both counsel have submitted that there is no specific authority on the main point, namely, whether an allegation of a breach of the rules of natural justice constitutes an error on a matter of law for the purposes of s 67 of the Act. The District Court's power to review decisions of the CTTT requires the Appellant to point to the decision on "a question with respect to a matter of law."

1. Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 concerned the exercise of jurisdiction by the District Court on an appeal from the CTTT. There the Court of Appeal held that there was no question with respect to a matter of law; further, that the District Court had engaged in fact finding beyond its jurisdiction.

1. Here I am not proposing to review the facts found by the Member.

1. President Allsop sets out at [35] that the essential first task under s 67 is to identify the express or implied decision on or with respect to a matter of law. It is a matter of substance involving the characterisation of the decision, the question and the error.

1. Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 concerned an appeal to the Supreme Court under s 67 of the Act. The decision related to the then existing right of appeal from the Tribunal to the Supreme Court of New South Wales from a decision of "a question with respect to a matter of law". A dispute about the scope of that jurisdiction and ancillary powers of the Supreme Court led to the appeal.

1. The High Court held that the question whether there was no evidence to support a factual finding of the Tribunal was a question with respect to a matter of law. See the summary of Hayne, Heydon, Crennan and Kiefel JJ at [69], [90] and [91].

1. The Appellant has also referred to Sullivan v Department of Transport (1978) 20 ALR 232, in particular at [343] and submits that there is an obligation on the CTTT to observe the rules of natural justice. Not to do so, the Appellant submits, constitutes an error of law.

1. Some decisions referred to, for example Dayeian v Davidson [2010] NSWCA 42; (2010) 76 NSWLR 512 at [38], appear to me to be questions of the Supreme Court exercising jurisdiction - which it undoubtedly has on matters of prerogative relief - which this court does not have.

1. I am informed that Judge Sidis of this Court in Field v Dettman [2011] NSWDC 125 held that the District Court "has no jurisdiction to deal with a complaint of this nature" that is, a denial of procedural fairness. See also Killick v McPherson [2009] NSWDC 134; (2009) DCLR (NSW) 298 a decision of Murrell DCJ where the power was doubted and the decision of Lazic v Pacey [2009] NSWDC 72; (2009) DCLR (NSW) 24.

1. Sullivan v The Department of Transport concerned the issue of whether the failure to adjourn a matter involved a failure to act judicially. It was held, in particular per Justice Deane at [343], that the relevant duty is to ensure a party is given a reasonable opportunity to present his case, and I emphasise the word "reasonable".

Error on a Matter of Law

1. Here the complaint seems to allege errors of law based on the failure to provide procedural fairness. As I have said, that concept was expounded in Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 and in the Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323.

1. Relevantly those and other authorities provide that where:

"...an administrative tribunal falls into an error which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it." (Craig v The State of South Australia at [79])

1. This was further considered in Solicitor General; Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523. The phrase, an appeal on "...a question with respect to a question of law" was given a narrow meaning at [59] and [72]."

1. The question of whether delay has resulted in an error of law or a breach of procedural fairness was considered by the High Court of Australia in the decision of NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 (2005); 228 CLR 470.

1. Per Gleeson CJ:

"[44] ...the rules of natural justice are not necessarily breached by excessive delay; the question, rather, is whether delay has denied and interested party a proper opportunity to present its case.

[45] There are two issues. They are (a) whether the delay of which the Appellants complain denied them the proper opportunity to present their case and (b) whether there is to be inferred from the circumstances of their case a constructive failure to exercise jurisdiction. The giving of answers requires further consideration of those circumstances.

...

[54] ... As Finkelstein J [(2004) 134 FCR 85 at 90-1] has pointed out it may well be that unless the Tribunal member had made notes of his initial views of credibility these initial views may well have been lost in the time which passed from the hearing of evidence to the delivery of reasons. On the other hand it may well be the case, I do not know, that the Tribunal member did keep notes, or was able to recall from a reading of the transcript or from listening to a tape recording of the proceedings the views he held at the time. That does not seem to me to be so improbable as to be able to be rejected. Certainly the Court knows nothing about any notes which the Tribunal member kept at the time nor whether the Tribunal member listened to a recording of the proceedings. The Court is, however, well aware that all proceedings of the Tribunal are taped and reading a transcript of proceedings even up to a year later could easily bring back to mind the reactions which the Tribunal member had when originally hearing the evidence."

Here it seems to me that the Member was following his own notes, which he had taken during the hearing.

"[55] It may be accepted, as authority in this court requires, that:

...

once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome. [Emphasis added]

However, as indicated earlier in these reasons, excessive delay of itself does not prove a breach of the rules of natural justice. The question is whether it is to be inferred that the delay in the particular proceeding has denied to an interested party the opportunity to present its case.

[56] The concluding passage in Hill J's reasons should be adopted as indicating the appropriate outcome on the appeal to this court. His Honour said:

'The problem I have is that there is nothing which requires me to reach one conclusion in preference to another as to what consequences were likely to have flowed from the delay which occurred. For my part I do not think that it is a necessary inference just from the delay itself that the Tribunal member was unable as a result of that delay to fulfil his function of reviewing the decision of the Respondent Minister or to be fair to the Appellants.'"

1. Per Kirby J:

"[85] Relevance of delay: The significance of delay, depending as it does on the issues for decision, necessitates examination of the matter actually decided. If this involved no more than the construction of a written document, the interpretation of a statutory provision applied to agreed facts or other like questions, undue delay, while regrettable, might not affect the acceptability or validity of what has been done. The court conducting the appeal or judicial review could judge that matter for itself. Where, however, the matter for decision involves an assessment of the truthfulness of a party or important witnesses, the resolution of competing versions of the facts and the differentiation of truth and falsehood, delay, especially protracted delay, in the provision of a reasoned decision may cast doubt on the validity of that decision. Commonly, this is explained by reference to the need to ensure that "the trier of fact can recall the testimony and the demeanour of the witnesses as well as the dynamics of the trial".

[106] Remedying a substantial risk of unfairness: I also agree with Gleeson CJ that, in order to make good a claim of unfairness, it is sufficient to establish that there was a substantial risk that the tribunal's capacity to assess fairly the Appellants' evidence, and to carry out its decision-making functions conferred by the Act, was impaired by the procedures adopted by the tribunal." [Citations omitted]

1. Clearly a refusal to grant an adjournment can constitute a denial of natural justice; see Italiano v Carbone (2005) NSWCA 177, in particular the decision of Justice Einstein at [175].

1. I have also reviewed a recent decision of the New South Wales Court of Appeal in Newton v Ellis [2012] NSWCA 106. The essence of that is that:

"The difficulty of challenging decisions is accentuated by the fact that they concern, in terms of adjournment applications, matters of practice or procedure an area into which appellate courts have shown a marked reluctance to intervene."

1. The relevant paragraph goes on to say:

"A tight rein on interference with such matters is necessary because the disposal of the cases could be delayed interminably and costs heaped up indefinitely if a litigant could at will in effect transfer all exercises of discretion in interlocutory applications from a judge in chambers to a Court of Appeal."

1. I also note for these reasons a decision of Associate Justice Malpass in the College of Financial Studies Pty Ltd v Tabbouche [2005] NSWSC 682, especially at [24] where it is said that "a failure to give adequate reasons does not give rise to an appeal falling within s 67 of the Act."

1. At the conclusion of submissions I was referred by the Appellant to Lloyd vVeterinary Surgeons Investigation Committee [2005] NSWCA 456; (2005) 65 NSWLR 245 and in particular the decision of Tobias JA at [87]. He held that where a Tribunal had denied procedural fairness to the party in failing to provide him with the opportunity to call evidence and make submissions on relevant matters that "such a denial of procedural fairness constitutes an error of law." It seems that Chief Justice Spigelman agreed with that analysis of the relevant statutory provisions.

1. In terms of the other aids which I may add to the interpretation of this matter, which has been the substantial issue between the parties, on the interpretation of s 67 is the Second Reading Speech to the Courts and Crime Amendment Act 2008. I quote from the Hansard of 24 June 2007 where the then Attorney General Mr Hatzistergos MLC simply says that:

"In a number of classes of cases currently going to the Supreme Court, the District Court has been identified as a more suitable venue for the cases to be held and the bill will amend the Consumer, Trade and Tenancy Tribunal Act 2001 in addition to other legislation in order to provide that certain minor appeals governed by those Acts are to be held in the District Court."

1. The interpretation contended for by the Appellant, which would be to invest the District Court with what is effectively prerogative writ jurisdiction, is not a minor matter or a minor appeal. If that is what is intended it should have been specifically provided by the Legislature. The preservation of remedies and relief for a denial of procedural fairness is already specified in s 65 of the Act. The Supreme Court would have the power to conduct a relevant judicial review under s 69 of the Supreme Court Act1970.

Alteration to the Scott Schedule Amounts: Ground 5

1. In terms of the other relevant matters of law, before I come to a conclusion on the primary point, let me deal with, effectively, the second submission made by the Appellant. That concerns the alteration to the Scott Schedule amounts in Ground 5.

1. Strangas submits that the judgment was defective in regard to the conclusion of amounts paid to the Burwood Council for footpath alterations as well as payments for GST.

1. The Respondent disputes that this Court in these proceedings can adjust the finding of orders of the Member on the basis of the material advanced in the affidavit of Mr Kyriakos Strangas, if at all. It submits that that is because this is an appeal on a question of law and those matters relate to a fact finding process (see Harmer v Hare [2011] NSWCA 229). Further it is submitted that this evidence should have been led before the CTTT - see the Department of Education and Training v Sinclair [2005] NSWCA 402.

1. I have urged the parties several times during the course of this hearing to try and resolve those two matters. That however, for reasons which can only be a matter of conjecture, has not proved possible and I must deal with this therefore on the basis of the legal framework within which I must exercise my powers.

1. Here I do not see any error arising on a matter of law. Clearly, there is a substantial issue of fact in these matters, for example, on whom the respective obligation to make payments to the council actually falls. There may well be an interpretative amount in relation to GST payments, however in my view those matters should be the subject of determination in the CTTT in accordance with its procedures. Such re-hearings are contemplated under s 68.

Conclusion on the Primary Point

1. In terms of a conclusion on the primary point, the authorities seem to suggest a distinction between error going to competence, for example a denial of procedural fairness, and matters where what is asserted is an error within jurisdiction, for example, the misconstruction of a statutory provision.

1. In my view this appeal effectively seeks the review of the process and procedure followed by the Member. It involves an attempt to reconsider a procedural decision by the Member not to grant an adjournment. For that reason the remarks of Justice McFarlane at [17] in Newton v Ellis, to which I have already referred, are particularly apposite.

1. In my view this is in reality an appeal against the exercise of a discretion on a procedural matter arising during the hearing. I do not regard the decision in these circumstances as being an error of law such as to enliven this Court's jurisdiction under s 67 of the Act.

1. The District Court is a court of statutory jurisdiction. It does not have inherent powers (other than to protect its own processes), nor does it have the jurisdiction of the Supreme Court in terms of prerogative writs.

1. In my view these proceedings should have been commenced in the Supreme Court.

1. Further, in my view this Court does not have the jurisdiction to deal with issues of procedural fairness, nor are those issues, in the context of the evidence in this case, errors on matters of law of the kind contemplated by s 67 of the Act. Prerogative relief jurisdiction is retained in the Supreme Court under s 65(2).

Consideration of Matters Relevant to Procedural Fairness

1. I then come to my consideration of matters relevant to procedural fairness. In the event that I am wrong on my conclusions on the primary matters, I set out the following matters and my relevant conclusions.

1. I have adopted this course because the approach outlined in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 is that an appellate court, where it is satisfied the denial of natural justice relevant to a finding of fact could make no difference to the result already reached, should proceed with caution.

1. Further, in terms of the application for an adjournment, this application needs to be considered in the light of the overall proceedings and the history of the matter. The Court file indicates that there were prior mention dates for the matter, there had been a series of case management mentions and directions. The Respondent points out that a further three months had elapsed since the earlier hearing before the Tribunal was vacated in August 2010.

1. The Appellant proceeded with the hearing, lacking any statements of evidence, expert reports in response to that of Mr Monteith or relevant Scott Schedules. Strangas did not file any material. Strangas' legal representatives at the Tribunal originally told the Member that he did not intend to call evidence. Following an interchange with the Member at the outset of the hearing, however, the solicitor changed his stance and decided to call evidence so he would be able to tender documents.

1. Strangas did not then, nor subsequently, provide any quantum evidence nor call any expert evidence in answer to that of the expert Mr Monteith. Mr Monteith's report (see exhibit 2 tab 5) appears to be based on a number of quotations including that of Bescorp as well as another quotation said to be that from a firm known as "Mancie and Long" referred to in the preamble to the Monteith report. Mr Jefferis submits that there is no evidence that Mr Monteith knew that Bescorp was the remedial builder. Mr O'Connor for the Appellant submits that that is a matter of overwhelming inference and I think there is considerable substance in that submission.

1. The evidence which was adduced could have been considered by Strangas and his legal representatives overnight. In my view no prejudice of any real or substantial nature to the Appellant has been demonstrated.

1. An examination of the transcript and judgment indicates that the make-up of the amounts claimed were examined in detail and involved an assessment of all the evidence. The Member was entitled to bring the matter to conclusion and acted properly in all the circumstances. I do not regard the position as being such as to justify the submission that there is any breach of the rules of natural justice insofar as Strangas was concerned, by permitting the hearing in these circumstances to continue to conclusion.

1. It should also be noted that the transcript indicates that there was extensive evidence and cross-examination of Ms Ting, Mr Lim as well as Mr Strangas. Comments made by the Member through the course of the hearing indicates that he is familiar with the matter.

1. It does not appear that the Appellant made any complaint suggesting that he was being treated unfairly or raised any issue about which the Appellant was proceeding. To the extent that there was an application made for an adjournment, it was not strongly pressed in terms of seeking any specific period of time. No application for an adjournment for any specific, substantial period, was renewed at the end of the evidence nor was any attempt made subsequently to seek to adduce other evidence in response or reply. The parties, in accordance with the Member's direction, filed written submissions after the hearing. The Appellant requested an extension of time to do so.

1. Here it appears to me that the position the Appellant faced was of its own making. The Appellant did not file, serve evidence, nor obtain expert evidence in reply. In that regard it should be noted that Strangas was a builder. Moreover it was the building company which had been involved in the particular project with Bescorp for a considerable time prior to the hearing before the Member. Bescorp was in the position of a remedial builder acting to complete the work which the Member found had not been carried out in accordance with the contract at the relevant times.

1. I am not satisfied that it was an error of law not to permit additional time for an evaluation or assessment of any of the material set out in either the Bescorp quote or the report of Mr Monteith, which was based on that report.

1. An attack was made on Mr Monteith as not complying with the expert code of conduct in bringing to the Member's attention that Bescorp was a remedial builder. If it is seriously suggested that that gave rise to a conflict of interest, then that could have been the subject of specific and in my view relatively simple cross-examination. Presumably that could have only occurred had there been some suggestion that the Bescorp quotation was either inflated or improperly submitted. If Strangas had wished to adduce evidence on which cross-examination of Mr Monteith could have taken place, it could have done so certainly ahead of the hearing. The reality is that Strangas, as I said, is and was a building corporation and he, Mr Strangas, was present at the hearing. None of the matters in the Bescorp quotation were unduly complicated. If any part of the Bescorp quote was suspect, then Mr Strangas could have given appropriate instructions for cross-examination at the relevant time.

1. As I have said, the affidavit of Ms Lim of 27 February 2012 states that the Bescorp quotation was provided to Strangas in September 2009 over a year before the hearing.

1. The complaint made by Mr O'Connor that there was a breach of the Code of Conduct by Monteith as an expert is neither justified nor appropriate in these circumstances in my view. Mr Monteith based part of his report on the material before him. He had no interest in the outcome. His opinions and comments were based on the only available information and evidence.

1. An examination of the transcript suggests to me that the Member was acting properly and in accordance with the statutory obligation of a Member of a specialist tribunal of this nature, to deal with the matter expeditiously. Further, the Appellant was in a position of a party who had not properly prosecuted its own action. The effect of any lengthy or substantial adjournment would have been to further delay recovery proceedings.

1. In that regard, due weight needs to be given to the fact that this is a specialist Division of a Tribunal where Members are required to proceed expeditiously and without any undue formality. The CTTT also has the duty under s 28 to proceed "according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms."

1. A substantial amount is involved. The Respondents had been through the experience of the delays in the original proceedings. I reject that ground of the application.

Delay

1. It does not appear to me that there is any jurisdictional error capable of founding an error of law, such as to invoke the jurisdiction of this Court. I do not consider that the decision was defective for want of procedural fairness. Nor has it been shown that the delay period led to any errors in the Member's assessment or his conclusion.

1. Having regard to the principles and the authorities to which I have referred earlier and the evidence in the proceedings, I do not regard the delay of ten months between the hearing and the dates of delivery as giving rise to an error of law as being a matter of law in these circumstances.

1. Having reviewed the transcript and the reasons, I do not consider it can be inferred that there was a serious delay, nor that the delay which occurred led to a real risk that the Member's capacity to assess the evidence was impaired. As I say, Strangas has complained that the delay has permeated what is an unsatisfactory finding of inconsistent and unsatisfactory evidence in relation to Mr Strangas' evidence.

1. The finding of the Member at paragraph 8 that he found parts of Mr Strangas' evidence inconsistent and unsatisfactory, in the context that the claims brought by the owners were not met with any contradictory evidence by the builder, was open to him. Indeed it is difficult to see any other conclusion. On the material before me nothing has been pointed to which would suggest that that finding was either inaccurate or inappropriate on the evidence available to the Member.

1. The judgment - sub-paragraphs 10(vi) and (xvii) - sets out the Member's rejection of the builder's evidence and arguments that it was either coerced or delayed by the owners. Mr Jefferis also refers to the inferential rejection of the builder's undertaking to complete the works in paragraph 14.

1. The Member accepted that both Respondents were witnesses of credit and their evidence was to be believed. Again that was open to him. Nothing was suggested that that finding was not open to him. It does not seem to me that any of the Member's comments during the hearing, nor in his reasons, properly found a claim for bias which was earlier alleged. In any event not only has that ground been abandoned but I do not think that the bias as referred to in Pollard v Wilson [2010] NSWCA 68 at [103] was apparent, nor was the conclusion made by the Member inappropriate.

1. The judgment makes it clear that the Member referred to his own notes, as I have said. As I understand the position, there is no complaint that there are inaccuracies from what he took from his notes, compared to the transcript, nor his recollection based on those notes.

1. In my view, in the context of this case there were adequate reasons given by the Member. It does not appear to me that there was any jurisdictional error capable of founding an error of law and therefore the jurisdiction of this Court. In any event, as I understand it, there was no issue that the Member had jurisdiction. Further, that the Member did not disregard any matter which he was required to take into account.

Decision

1. For these reasons I do not find that there has been a decision on a matter of law made by the Member which was in error on any of the grounds alleged and I accordingly would dismiss the appeal.

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Decision last updated: 21 May 2012