On September 30 2015 the NSW Civil and Administrative Tribunal (NCAT) Appeal Panel handed down its decision in Emmery v Smith  NSWCATAP 212 dismissing an appeal and refusing further leave to appeal a decision of the Consumer and Commercial Division of NCAT.
The respondent homeowner and the applicant builder entered into a contract for residential building work. The respondent claimed that the appellant breached the contract and statutory warranties by overcharging for materials, failing to obtain home warranty insurance, undertaking electrical work without a licence and delaying work. The respondent further claimed that there were numerous building defects which justified ending the contract. The Tribunal below found in favour of the home owner.
The Appeal Panel's decision dismissing the builder's appeal serves as a useful reminder about key elements of NCAT practice.
No appeal as of right on questions of fact
The Appeal Panel held that the builder's grounds of appeal did not raise questions of law, but rather questions of fact. Section 80(2) of the NCAT Act provides that an appeal may be made as of right on any question of law, or with leave of the Appeal Panel on any other grounds. The Appeal Panel also considered if the appellant had suffered a substantial miscarriage of justice, such as to justify leave to appeal. The Appeal Panel quoted from Pholi v Wearne  NSWCATAP 78, which explained the meaning of "substantial miscarriage of justice" as follows:
[The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
The Appeal Panel held that there was nothing in the evidence or the treatment of it by the Tribunal below that approached requiring leave to appeal on any basis, let alone on the basis of any substantial miscarriage of justice.
Relevant evidence must be placed before the Tribunal, despite informality
One of the issues before the Tribunal below was whether the builder had obtained home warranty insurance. An eligibility certificate was in evidence before the Tribunal below, which was endorsed "this certificate of eligibility is not to be used as a certificate of insurance under the Home Building Act 1989 (NSW). Homeowners are not covered as result of this certificate of eligibility and separate certificates of insurance are required in respect of individual building works".
During the appeal hearing, the builder produced a certificate of insurance which he had failed to produce during the first hearing. The appellant disputed the finding in the Tribunal below that home warranty insurance was not in place at the time the work was carried out.
The Appeal Panel emphasized, even in circumstances where the Tribunal is not bound by the rules of evidence and is to act without formality (section 38 of the NCAT Act), a party should at least identify at the hearing all the evidentiary material on which the party relies. This is particularly so when, as was the case here, the appellant had legal representation. The certificate of insurance should have been produced or referred to at some stage during the first hearing. It was found, in any event, that the certificate of insurance did not achieve sufficient compliance with the Home Building Act and this ground of appeal was dismissed.
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