Benjamin & Benjamin v Geneville Constructions Pty Ltd

1. [1]

   HER HONOUR: By summons filed on 16 August 2021 the first and second plaintiffs, Edmund Benjamin and Sarah Benjamin respectively, seek judicial review of, and leave to appeal from, a decision of the Appeal Panel of the Civil and Administrative Tribunal New South Wales (“the Appeal Panel of NCAT”). The proceedings are brought pursuant to s 69 of the Supreme Court Act 1970 (NSW) and s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (“the NCAT Act”), respectively. The plaintiffs ask that the Court quash the decision made by the Appeal Panel on 18 May 2021: Benjamin v Geneville Constructions Pty Ltd; Geneville Constructions Pty Ltd v Benjamin [2021] NSWCATAP 138 (“the decision”).

2. [2]

   Because of the multiplicity of proceedings in this matter, and the possibility of confusion inherent in the terminology of plaintiff and defendant, where each party has fulfilled each role at some point in the overall history of the matter, I propose to refer to the parties by name in this judgment, that is, as “Mr and Mrs Benjamin”, and “Geneville” or “the builder”.

3. [3]

   The second defendant in the proceedings before this Court is NCAT, which has filed a submitting appearance.

The Background to the Proceedings

1. [4]

   Mr and Mrs Benjamin are the owners of a property in Carlingford (“the property”). Having previously been involved with Geneville with respect to earlier building works, in 2013 Mr and Mrs Benjamin entered into discussions with the company concerning demolition and construction work they wished to be done on the property. Prior to any contract being executed Geneville undertook some tasks associated with the proposed works, from 2013 to November 2015.

2. [5]

   On 11 September 2016 a contract was signed between the parties for the work to be done. Pursuant to it Mr and Mrs Benjamin paid a deposit, and Geneville commenced the works described as Stage 1 in the contract. During the work Geneville encountered an area of hidden rock on the site, a “hidden site condition” contemplated by clause 14 of the contract. The company notified Mr and Mrs Benjamin of the problem, and of the increased costs associated with it. They terminated the contract, pursuant to termination provisions in the agreement.

3. [6]

   Thereafter, a dispute arose when Geneville complained that Mr and Mrs Benjamin had failed to pay for the work done, under contract and prior to the execution of the contract. A claim was filed in the District Court by Geneville, and later transferred to NCAT. Mr and Mrs Benjamin also filed a claim, asserting that the deposit they had paid exceeded the value of the work done, and they were not liable to pay for the pre-contractual works carried out. The Benjamins sought to have the builder refund some of the deposit monies as an overpayment.

4. [7]

   Much of the dispute centred on the operation and interpretation of clause 14.7 of the building contract which, in circumstances where the owner ended the contract, provided that:

5. [8]

   At first instance NCAT determined the dispute largely in favour of Geneville, concluding that cl 14.7 covered the costs of the pre-contractual work undertaken by the builder, and also the costs of fencing, and customised windows ordered and prepared but not, because of the termination of the contract, ultimately delivered. The Tribunal disallowed some of the builder’s claims but ordered Mr and Mrs Benjamin to pay Geneville $237,701.34 by 24 March 2020. The claim filed by the Benjamins was dismissed: Geneville Constructions Pty Ltd v Benjamin [2019] NSWCATCD

6. [9]

   Both parties appealed against the decisions of NCAT, although the builder’s appeal sought only to have the amount awarded to it reduced, due to what it said were errors in the first instance calculation of monies owed to it. The matter came before the Appeal Panel of NCAT in September 2020, with orders made on 18 May 2021. The Appeal Panel allowed the appeal filed by Mr and Mrs Benjamin, reducing the amount they were ordered to pay to Geneville to that the builder had argued was correct, being $137,114.65; the appeal filed by Geneville was dismissed.

7. [10]

   Mr and Mrs Benjamin now ask this Court to review the decision of the Appeal Panel of NCAT.

The Decision of the Appeal Panel

1. [11]

   The Appeal Panel summarised the nature of the appeals before it in this way, at [28] to [31]:

2. [12]

   The appeal focused on the Tribunal’s conclusions with respect to charges levied on Mr and Mrs Benjamin by Geneville for custom made windows and frames, even though the goods had not been supplied; charges for work carried out by Geneville prior to the execution of the contract; and what was contended to be excessive charges raised for the supply of temporary fencing. Asserted inadequacies in Geneville’s business records was also raised, as relevant to the charges claimed.

3. [13]

   In its reasons for the decision the Appeal Panel observed, at [82]:

4. [14]

   With respect to the complaint concerning the Tribunal’s conclusion that Mr and Mrs Benjamin were liable to pay for windows that had not been delivered, the Appeal Panel concluded, at [84], that:

5. [15]

   Further, at [88], the Panel noted:

6. [16]

   With respect to the claim relevant to temporary fencing the Appeal Panel concluded that the same difficulty as operated with respect to the complaint concerning the windows applied. It concluded, at [92]:

7. [17]

   The Appeal Panel was similarly not persuaded that there had been error in the Tribunal’s determination of the dispute over payment for pre-contractual work undertaken. The Panel was satisfied that the Tribunal had dealt with the factual complaints raised by Mr and Mrs Benjamin before turning to “the real question”. It said, at [101]:

8. [18]

   It found that, whilst the language employed by the Tribunal may not necessarily have been always apposite, the conclusions it reached in interpreting the contract and applying it to the pre-contractual works was the correct one. It said, at [104] – [108]:

The Application

1. [19]

   The application made by the Benjamins is twofold: they seek judicial review of the decision of the Appeal Panel pursuant to s 69 of the Supreme Court Act or, in the alternative, leave to appeal out of time from the decision of the Appeal Panel pursuant to s 83(1) of the Civil and Administrative Tribunal Act. Although the NCAT Act provides for an avenue of appeal against a decision of the Appeal Panel, Mr and Mrs Benjamin have sought judicial review as the principal means of challenging the decision. That may be because there is no requirement for leave to pursue an application for judicial review. In an appeal pursuant to s 83(1) of the NCAT Act, the leave of the Supreme Court must be obtained, and any appeal must be filed within 28 days of the decision appealed against. The time in which to file a s 83 appeal had long expired by the time the present summons was filed, and thus an extension of time in which to seek leave to appeal is additionally required.

2. [20]

   The errors contended for are said by Mr and Mrs Benjamin to be sufficient to meet the requirements of either avenue of review. The grounds proposed are as follows.

   1. (1)

      Ground 1: the Appeal Panel erred in concluding that NCAT was correct in finding that Geneville was entitled to the claim for $26,581.33 made for pre-contractual work in the absence of any contract;

   2. (2)

      Ground 2: Not pressed;

   3. (3)

      Ground 3: the Appeal Panel erred in concluding that NCAT was correct in finding that the Benjamins were liable to pay for windows.

   4. (4)

      Ground 4: There was jurisdictional error in the conclusions of the Appeal Panel with respect to temporary fencing.

3. [21]

   As to the initial question of the avenue of review, Mr and Mrs Benjamin contend that the Court should exercise its supervisory jurisdiction pursuant to s 69 of the Supreme Court Act because of the meritorious nature of the claim. Further, and relevant to a grant of leave for a s 83 NCAT Act appeal, the amount of monies in dispute – about $90,000 – is not insignificant; and the complaint relates to a matter of general importance, being the interpretation of a widely used standard building contract. It was conceded that there was nothing in evidence to explain the delay in bringing the appeal, a delay of about 3 months.

4. [22]

   As to the grounds of appeal, the Benjamins contend that the question of error by the Tribunal rests upon the proper construction of cl 14.7 of the building contract, the contract being an instrument in writing, where contractual construction is a question of law. The Appeal Panel erred in its construction of the clause, and such an error is jurisdictional error.

5. [23]

   It is submitted that the Appeal Panel was wrong to conclude that cl 14.7 could apply to the work undertaken prior to the execution of the contract, as the contract did not operate retrospectively. The Panel was also wrong in its conclusions that the phrase “the works” employed in the contract had wide application such as to catch pre-contractual works. The Benjamins argue that the Panel’s conclusions in this regard were legally unreasonable on the evidence before the Tribunal and Panel.

6. [24]

   It is submitted that the Appeal Panel was in error in relation to its conclusions as to the Benjamins’ liability for the custom windows given the failure of the builder or windowmaker to deliver the windows after their construction, the windows having been (perhaps) destroyed. The Benjamins argue that the Appeal Panel further fell into jurisdictional error in failing to consider their argument that the contract did not allow the builder to charge them for windows that were not delivered to them.

7. [25]

   With respect to the charges for temporary fencing Mr and Mrs Benjamin contend that the Appeal Panel failed to consider the evidence and arguments before it on this issue, and failed to provide adequate reasons for its conclusions, thus falling into jurisdictional error. Although this was a separate complaint the Panel dealt with this matter by reference to the conclusions reached in relation to payment for the windows, an approach which failed to grapple with the distinct evidence and arguments placed before it on this issue.

8. [26]

   Geneville contends that this appeal should properly have been brought pursuant to s 83 of the NCAT Act, with the claim on the Court’s supervisory jurisdiction made for no better reason than that the prospects of being granted an extension of time and leave to appeal under the statutory scheme are remote. It submits that the Court should refuse to exercise its supervisory jurisdiction, and refuse leave to appeal under the NCAT Act.

9. [27]

   That is particularly so as the amount in dispute between the parties is likely to be overwhelmed by the costs incurred in the litigation concerning it.

10. [28]

    As to the individual grounds proposed, Geneville contends that none of the complaints raise the sort of error which should be considered by the Court, pursuant to either s 69 of the Supreme Court Act or following a grant of leave under s 83 of the NCAT Act. The Tribunal at first instance correctly interpreted the critical cl 14.7 of the contract, and the Appeal Panel was correct in declining to find error. The argument of unreasonableness is without merit, as are the assertions as to inadequacies in the Appeal Panel’s reasons.

Determination

1. [29]

   The preliminary question is the basis upon which this Court is to review the decision of the Appeal Panel, if such a review is to be undertaken at all.

2. [30]

   Section 83(1) of the NCAT Act provides for a statutory mechanism of appeal, as follows:

3. [31]

   An application for leave to appeal must be filed within 28 days of the date upon which the impugned decision is made: r 50.3(1) of the Uniform Civil Procedure Rules 2005 (NSW).

4. [32]

   As Geneville contends, the weight of authority is to the effect that, where a statutory avenue of appeal lies, it is ordinarily that avenue which should be pursued rather than by judicial review. That approach is anticipated and provided for by s 34 of the NCAT Act, which is, relevantly, in these terms:

5. [33]

   Caution in exercising the Court’s supervisory jurisdiction is particularly important where it is open to conclude that judicial review has been sought because of the likely difficulty in obtaining a grant of leave to pursue an appeal pursuant to s 83. That is the position of Mr and Mrs Benjamin. Not only do they require leave to pursue an appeal, they also require an extension of time in which to bring the application, given that the Summons was filed almost 3 months after the Appeal Panel made orders. As counsel for the Benjamins conceded in oral submissions, no evidence was placed before the Court to explain the failure to bring an application within the time allowed. An explanation was offered from the Bar Table, but that must be distinguished from evidence.

6. [34]

   The requirement for leave, and the need for an extension of time to be allowed to the Benjamins in circumstances where the delay is entirely unexplained, make the task of pursuing a statutory appeal more difficult. Against that background, judicial review may have appeared to be a better option. That is one feature of the matter that militates against the exercise of the Court’s jurisdiction to review the decision of the Appeal Panel pursuant to s 69 of the Supreme Court Act.

7. [35]

   The situation is not greatly dissimilar to that considered in Makowska v St George Community Housing Ltd [2021] NSWSC 287, where Basten J (sitting in the Common Law Division) said, at [7] – [9]:

8. [36]

   His Honour cited Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501; [2006] WASCA 219 at [129]-[130], [133]-[138] (Martin CJ, Wheeler JA agreeing) in that regard.

9. [37]

   Mr and Mrs Benjamin relied upon the merit of their proposed grounds as a basis upon which the Court would conclude that there should be judicial review of the impugned decision, but the complaints advanced are not obviously meritorious. Such merit as they may have can be adequately assessed in the context of a s 83 appeal since, as counsel for the Benjamins contends, the proposed grounds can be advanced under either basis of appeal.

10. [38]

    It is convenient to consider the merits of the arguments at this point, in the context of an appeal from a decision of the Appeal Panel.

11. [39]

    At issue is $14,042.82 in costs charged by the builder for work undertaken on the site prior to the execution of the contract.

12. [40]

    The construction of cl 14.7 is important to the determination of this ground, since at issue is the correctness of, at first instance, the conclusions of the Tribunal on this point; and, secondly, those of the Appeal Panel in declining to find that the Tribunal’s decision was erroneous.

13. [41]

    The circumstances in which cl 14.7 operates are of some significance, since this clause only has work to do in circumstances where the owner has ended the contract, as occurred in this instance. The builder having struck rock on the site, notice was given of that fact to Mr and Mrs Benjamin who, in accordance with cl 14.6 of the contract, ended it. Clause 14.7 then operated, and the owner had to pay to the builder the price of “the works” carried out to the point at which the contract “is ended”. The term “the works” is not defined in the contract and was construed by the Tribunal and the Appeal Panel as having wide application.

14. [42]

    The costs claimed were set out in the decision of the Appeal Panel at [51]. They were all costs associated with preparation for the building works ultimately the subject of the contract. The Tribunal found that there was a sufficient nexus between the pre-contractual work done and the building and construction work to be done under the contract as to permit the cost of the work to be claimed by the builder under cl 14.7.

15. [43]

    Mr and Mrs Benjamin contend that the conclusion of the Tribunal, upheld by the Appeal Panel at [103] of the decision, was wrong, as “works” could only be understood to include works done after the contract was signed in September 2016.

16. [44]

    If that were so, however, there would be no reason for the terminology used in cl 14.7 to differ from the terminology used elsewhere in the contract. As the Appeal Panel concluded, the term “the works” has a broader meaning than the term “building works”. That broader meaning encompasses work done which, in circumstances where the contract continued to completion, could have been absorbed within the overall contract price, an avenue of recompense not available to the builder where the contract is ended at an early stage pursuant to cl 14.6.

17. [45]

    Clause 14.7 deliberately establishes a mechanism for the builder to claim payment for “works” done where the mechanism for payment otherwise available under the contract, for payment at the completion of particular stages of the building works, no longer applies. As the Appeal Panel concluded, cl 14.7 does not include any commencing temporal restriction; it refers to works carried out until such time as the contract “is ended”. It is not insignificant that the ending of the contract is specified as the point in time beyond which costs do not accrue but, conversely, the beginning of the contract is not specified as the point from which costs can be claimed. The Appeal Panel was correct to conclude at [108] that no temporal restriction could be read into the clause beyond the words used. The pre-contractual work done by the builder was work relevant to the building and construction works the subject of the contract, and the Benjamins benefitted from it. The costs were “in connection with” the project and the Appeal Panel was correct to conclude that there had been no error in the Tribunal so concluding.

18. [46]

    The complaint of unreasonableness must also fail as unmeritorious. Other than by defraying the costs in the staged payment process pursuant to a continuing contract, the claim for payment of pre-contractual costs could only ever have been made by Geneville after the owners ended the contract pursuant to cl 14.7. That it did not levy charges for these works prior to that point is irrelevant since, absent the ending of the contract, the cost could have been recovered by Geneville in the staged payments. Reliance on Minister for Immigration and Citizenship v Li 920130 249 CLR 332 is misplaced; that decision relates to administrative decisions made in the exercise of discretionary powers.

19. [47]

    This complaint relates to the costs of $62,700 for customised bespoke windows which were ordered under the contract and manufactured as ordered, but not delivered after the contract was ended.

20. [48]

    The Benjamins rely upon an argument that the Tribunal, and in upholding the decision of the Tribunal, the Appeal Panel, was wrong to conclude that the builder was entitled to its costs relevant to windows constructed for the building works, pursuant to cl 14.7. The argument is that the construction of cl 14.7 was wrong and, further, that the Appeal Panel failed to consider an argument put to it, to the effect that Geneville “ought not have been allowed to charge” for windows that were not received by the owners, having been (apparently) destroyed by the manufacturer.

21. [49]

    As Geneville contends, it is not at all clear that such an argument was put as a distinct complaint before the Appeal Panel. The argument before the Tribunal and the Appeal Panel concerned the reliability of the builder’s claim for the amount charged. There does not appear to have been any finding made concerning the fate of the windows, or any contention that such a finding should have been made; that is a question of fact which cannot be resolved in these proceedings. The import of Geneville’s evidence concerning the windows was that they had been ordered from a third-party manufacturer to the specifications provided by the owners, and their bespoke nature meant that the windows could not be returned for a refund or used elsewhere, because of the customised nature of them.

22. [50]

    The cost was one incurred by the builder, and it was entitled to charge it to the owner under cl 14.7. Whilst one can sympathise with the owners’ dismay and anger at being charged for windows never received and which may or may not have been destroyed or otherwise disposed of by the manufacturer, that dismay does not make for an error of law by the Tribunal or the Appeal Panel. The question was whether the builder could claim the cost of the windows under cl 14.7; that question was in my opinion correctly resolved by the Appeal Panel at [90] of the decision.

23. [51]

    This complaint concerns a charge of $13,899.60 for temporary fencing at the site. The owners contend that the reasons of the Appeal Panel concerning this complaint were inadequate, and that the Panel failed to consider a discrete argument put by Mr and Mrs Benjamin.

24. [52]

    At the heart of this complaint is a factual matter, being the accuracy or veracity of the amount charged for fencing by a third-party engaged by Geneville, a cost passed on to the owners. In substance, the contention is that the Tribunal should have preferred the owner’s account of the length of time over which fencing was in place as opposed to Geneville’s claim based upon the third-party invoices. The Tribunal held that there was no reason to go behind the invoices, and the Appeal Panel found no error in that approach. The Panel referred to what it had earlier concluded in that regard (at [84]) concerning the windows and applied the same reasoning. The approach was neither incorrect nor inadequate to explain its reasoning.

25. [53]

    The Panel considered the owners’ argument but was not persuaded that error had been made out. The reasons are clear as to the basis for that decision. I see no error or injustice in the conclusions of the Appeal Panel.

26. [54]

    Having considered the evidence and submissions advanced in support of the owners’ claims the Court is not persuaded that there has been any substantial miscarriage of justice such that its supervisory jurisdiction should be exercised. There is no good reason to review the decision of the Appeal Panel pursuant to s 69 of the Supreme Court Act.

27. [55]

    Neither is the Court persuaded that there should be an extension of time granted to Mr and Mrs Benjamin in which to bring their application for leave to appeal, since the application is not one which would properly attract a grant of leave.

28. [56]

    This (relatively) small claim has already been fully litigated before NCAT, and an appeal thereafter carefully considered by the Appeal Panel. This application is an attempt to litigate the matters for a third time. The costs of the proceedings risk becoming disproportionate to the claim made. That feature militates against a grant of leave.

29. [57]

    Further, Mr and Mrs Benjamin have not discharged the onus that rests on them to establish that the subject of the proposed appeal is a matter of public importance, or that there is a question of principle involved, or that there has been a miscarriage of justice. I would not grant leave to appeal pursuant to s 83 of the NCAT Act.

30. [58]

    The Court makes the following orders:

    1. (1)

       The Summons filed on 16 August 2021 is dismissed.

    2. (2)

       The plaintiffs are to pay the first defendant’s costs of these proceedings.