Unhappy with a Home Building Decision at NCAT? Your Appeal Options

Receiving the outcome of an NCAT home building dispute can feel like the end of the road. But what if you believe the Tribunal got it wrong – whether in the way it applied the law, interpreted the evidence, or reached its conclusion?

Both owners and builders can benefit from seeking specialist legal advice early to ensure they understand their appeal rights – including whether grounds for an appeal exist – in order to ensure that that they have a proper understanding of the relevant issues and are not left with an unjust result simply due to a lack of knowledge regarding the appeals process.

This article deals with some of the most frequently asked questions concerning NCAT home building appeals.

Which decisions can be appealed?

Home building disputes are heard by the NSW Civil and Administrative Tribunal (NCAT) sitting in its Consumer and Commercial Division.

Decisions made in the Consumer and Commercial Division can be appealed:

• On any “question of law”; or,
• On any other ground, with the leave (i.e. permission) of NCAT’s Appeal Panel.

An appeal to the Tribunal’s Appeal Panel does not simply provide a party who has been unsuccessful in the Tribunal with the opportunity to run its case again, or to simply contend that there should have been a different outcome.

What is a “question of law”?

A question of law means a question of law alone, separate from any question of fact. What amounts to a question of law has been the subject of much judicial consideration, however is best summarised in the comments of Justice Beech-Jones in In Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734:

That is, a question of law is separate and distinct from the facts of the case. A question of law alone does not depend on factual questions, nor on factual findings made (or not made) by the Tribunal.

The Appeal Panel in Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 provided the following (non-exhaustive) list of possible questions of law:

• Whether there has been a failure to provide proper reasons.
• Whether the Tribunal identified the wrong issue or asked the wrong question.
• Whether a wrong principle of law had been applied.
•  Whether there was a failure to afford procedural fairness.
• Whether the Tribunal failed to take into account relevant (i.e. mandatory) considerations.
• Whether the Tribunal took into account an irrelevant consideration.
• Whether there was no evidence to support a finding of fact.
• Whether the decision is so unreasonable that no reasonable decision-maker would make it.

When will the Appeal Panel grant leave to appeal?

Clause 12 of Schedule 4 to the Civil and Administrative Tribunal Act 2013 (NSW) restricts the circumstances in which the Appeal Panel can grant leave. It provides that the Appeal Panel may only grant leave if it is satisfied the appealing party (the “appellant”) may have suffered a substantial miscarriage of justice because either:

• the decision of the Tribunal under appeal was not fair and equitable, or
• the decision of the Tribunal under appeal was against the weight of evidence, or
• significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

The Appeal Panel does not need to be satisfied the appellant has actually suffered a substantial miscarriage of justice; all that is required is that the Appeal Panel is satisfied this may have occurred.

Even if the Appeal Panel is satisfied that an appellant may have suffered a substantial miscarriage of justice, the Appeal Panel is not required to grant leave – it may do so, but this is ultimately a matter for the Appeal Panel’s discretion.

In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel summarised the general principles that will be taken into account by the Appeal Panel in exercising this discretion in the following way(citations omitted):

1. “In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact.
2. Ordinarily it is appropriate to grant leave to appeal only in matters that involve:

• • issues of principle;
  • questions of public importance or matters of administration or policy which might have general application; or
  • an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal’s decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
  • a factual error that was unreasonably arrived at and clearly mistaken; or
  • the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed,

1. In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing.”

What orders can be made by the Appeal Panel in determining an appeal?

In determining an appeal, the Appeal Panel may make such orders as it considers appropriate including (without limitation) the following:

• for the appeal to be allowed or dismissed.
• for the decision under appeal to be confirmed, affirmed or varied.
• for the decision under appeal to be quashed or set aside.
• for the decision under appeal to be quashed or set aside and for another decision to be substituted for it.
• for the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.

What is the timeframe for lodging an appeal?

An appeal must be lodged with the Tribunal within the period ending 28 days after the day on which the written statement of reasons for the decision is given to the person seeking to appeal.

Can an appeal be lodged out of time?

Yes – but only if the Appeal Panel grants an extension of time for this to occur.

The considerations the Appeal Panel will take into account in consideration whether to grant an extension of time in which to lodge a Notice of Appeal were set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22] and include, relevantly:

• the discretion to extend time is given for the sole purpose of enabling the Tribunal to do justice between the parties.
• the discretion is to be exercised in the light of the fact that once the appeal period has expired, the respondent to the appeal can be thought of as having a “vested right” to retain the benefit of the decision under appeal.

It is necessary for an appellant to explain the reason for the delay in lodging their notice of appeal.

If an appellant’s explanation for their delay is less than satisfactory, it may be necessary for the appellant to show not merely that the case is arguable, but that it has more substantial merit.

Are costs awarded in NCAT home building appeals?

Whether costs are awarded in NCAT home building appeals is subject to the nature of the appeal itself, and the amount in dispute.

Rule 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) deals with costs in internal appeals, and relevantly provides that the Appeal Panel for an internal appeal must apply the first instance costs provisions when deciding whether to award costs in relation to the internal appeal.

For the purposes of r38A of the NCAT Rules, the amount claimed or in dispute is the amount in dispute on appeal, not the amount in dispute in the proceedings at first instance: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 at [57].

The effect of the above is that, regardless of the amount in dispute in the proceedings which are under appeal, in an NCAT home building appeal the usual position is that:

• If the amount in dispute in the appeal itself is less than or equal to $30,000, the Tribunal may only award costs where there are special circumstances.
• If the amount in dispute in the appeal itself is greater than $30,000, the Tribunal may award costs even in the absence of special circumstances.

How We Help

NCAT appeals can be challenging, with appeal grounds and timeframes interpreted strictly. Our specialist Building and Construction Lawyers can help you every step of the way, from advising you on your appeal rights, explaining your options, preparing and lodging your appeal, all the way through to appearing on your behalf.