Hanson v Metricon Homes Pty Ltd

1. [1]

   This is an application, brought by summons, for leave to appeal against a decision made by an Appeal Panel of the New South Wales Civil and Administrative Tribunal (“the Tribunal” or “NCAT”) on 31 May 2019. The summons also seeks orders in relation to the decisions of a Senior Member made on 13 November 2018. The parties agreed, however, that the case is properly to be understood as an appeal against the decision of the Appeal Panel. The broader issue between the parties involves a dispute over the non-payment of money owed on a building contract, and a cross-claim alleging shoddy and incomplete building work. However, the present dispute is largely confined to the failure of the Senior Member to grant an adjournment and the decision of the Appeal Panel dismissing an internal NCAT appeal of that decision. The present dispute centres on an assertion that there was a denial of procedural fairness. There is a further ground of appeal asserting that neither the Senior Member nor the Appeal Panel addressed the defence raised in the proceedings.

Background to the present dispute

1. [2]

   In March 2015, Lloyd and Anna Hanson entered into a residential building contract with Metricon Homes and certain building works were carried out at their home address in Riverstone. Metricon asserts that the total value of the work performed under the contract, including subsequent variations, was $592,673. The Hansons have made payments totalling $423,241.85. In December 2016, Metricon brought a claim for the shortfall, being an amount of $169,431.15 (plus interest).

2. [3]

   The Hansons filed a defence in the following terms:

3. [4]

   There were delays in the litigation, partially to do with a serious illness suffered by Mrs Hanson and otherwise attributable to the Hansons and not to Metricon. On 10 November 2017, the Hansons filed points of cross-claim. [2] The cross-claim made a variety of complaints concerning the standard of the work carried out by Metricon including assertions that the work was incomplete. It is unnecessary to particularise the detail of these complaints other than to note that there was some cross-over with the matters raised in the defence. Metricon filed a defence to the amended cross-claim on 1 December 2017. [3]

Case management and expert reports

1. [5]

   Metricon sought to have its claim for the debt heard separately, and first, but the Tribunal determined that the two claims should be heard together. The basis of that decision appeared to be that the defence and cross-claim had some common features and that the claim by Metricon could possibly be defeated or diminished if the cross-claim was successful in whole or in part. Principal Member Rosser gave certain reasons for ordering the matters to be heard together on 11 April 2018, although those reasons referred to an earlier decision of the Tribunal. [4]

2. [6]

   Various case management directions were made over time and evidence, including expert evidence, was filed by both sides. Joint expert reports were prepared, although there was substantial disagreement between the experts retained by each side. Metricon’s expert (Ken Winton) thought the defects in the work could be remedied for $7,405.20 while the Hansons’ expert (Paul Cavallo) estimated the remediation would cost a little over $193,000. The difference between these opinions is staggering but it is unnecessary to consider it further.

The Zakos report

1. [7]

   Subsequently, the parties agreed and the Tribunal directed that an independent expert (George Zakos) provide a report.

2. [8]

   The precise status of that independent expert report is controversial and, as it turned out, crucial to the decisions made by the Senior Member that are under review. On 11 April 2018, Principal Member Rosser made orders including:

3. [9]

   However, on 12 October 2018 Principal Member Rosser made orders including:

4. [10]

   These seemingly contradictory directions were subject to dispute between the Senior Member and the Hansons towards the end of the first day of the hearing. [7]

5. [11]

   The Zakos report was not received by the parties until the Friday before the commencement of the hearing presided over by Senior Member Goldstein. According to the Hansons, it was the late service of the report that caused their lawyer to withdraw at the last minute because he was not in a position to meet or test it. I will return to the issue of its tender and the circumstances in which the Hansons were denied the opportunity to contest the Zakos report.

6. [12]

   It was submitted on the hearing of this appeal, and it was put by Senior Member Goldstein, that the Zakos report was a “simple report”. I do not agree with that assessment. It may be simple for those who practice in the area of building and construction law, but it was not likely to be simple to an unrepresented litigant who arrived at court expecting to be represented by a lawyer. The report was around 100 pages in length and was served well out of time and on the last working day before the hearing.

The hearing before the Senior Member and the application for adjournment

1. [13]

   At the heart of this appeal is the contention that the Hansons were denied procedural fairness at the hearing before the Senior Member. This submission arises from the fact that their lawyer withdrew from the case on the morning of the first day of the hearing and an application for adjournment was refused. It is submitted that the Hansons were unable properly to prosecute the case because they were unrepresented. Because these matters are at the forefront of the Hansons’ appeal, it is necessary to set out in a little detail the transcript of the proceedings before the Senior Member.

2. [14]

   The matter came on for hearing before Senior Member Goldstein on 12 November 2018. The hearing did not start well for the Hansons. According to the transcript, this is how the hearing commenced:

3. [15]

   From that point, the Hansons were not represented at the hearing, which continued:

4. [16]

   The case then commenced with discussions about the nature of the issues between the parties. As Mr Hanson was contesting the way in which the issues had been framed by counsel for Metricon, the following exchange occurred:

5. [17]

   The discussion continued until Mrs Hanson asked the Senior Member “Are you saying to withdraw our claim?” [10] The discussion continued:

6. [18]

   The email was not tendered and counsel for Metricon put his client’s position that he would be happy to have Metricon’s claim heard first, but was concerned that there be any further delay in the hearing of the cross-claim. [12] There was further discussion about the reasons the Hansons’ lawyer had withdrawn. Counsel for Metricon informed the Tribunal that there had been discussions between the lawyers on the previous Friday but that “his retainer was terminated”. [13] Counsel suggested that the circumstances surrounding the withdrawal of the solicitor “may be slightly different to what is being submitted to you”. [14] As to the discussions between the legal representatives, Mrs Hanson said “we had no idea of the talks between them” and Mr Hanson said “we know nothing about it”. [15]

7. [19]

   After further argument, the Senior Member said:

8. [20]

   At that stage it appears that the Senior Member had decided to proceed with Metricon’s claim and the Hansons’ cross-claim at the same time. The case proceeded for the rest of the day, with expert witnesses (Mr Broune and Mr Barry) giving concurrent evidence. [17] Mr Hanson conducted the examination of these witnesses, with some questions and comments also coming from Mrs Hanson.

9. [21]

   Later in the day Mr Hanson indicated that he and his wife were unable to deal with the technical aspects of the case and were contemplating withdrawing their cross-claim. Mr Hanson said:

10. [22]

    The issue of the Zakos report was then ventilated.

11. [23]

    The Senior Member asked if the parties sought to tender that document. Mrs Hanson wondered if they had “any option” and said “we’d rather not because we don’t believe (indistinct) …” [19] Counsel for Metricon then tendered the Zakos report. It was received “over [the Hansons’] objection”. The Senior Member explained his reasons and the contents of the report at a little length. [20] In essence, the decision was based on the parties agreeing to be bound by the expert report and the orders made by Principal Member Rosser at the directions hearing on 11 April 2018.

12. [24]

    It is necessary to reproduce this part of the transcript and the reasons of the Senior Member:

13. [25]

    Next, Mr Hanson attempted to articulate certain “exceptions” he took to the Zakos report. The transcript records the exchange with the Senior Member as follows:

14. [26]

    When Mrs Hanson asked whether they could decide if they wanted to withdraw (the cross-claim) before further evidence and arguments concerning damages, there was an exchange between Mrs Hanson and the Senior Member:

15. [27]

    The case was adjourned overnight to give the Hansons an opportunity to seek legal advice.

16. [28]

    The second day of the hearing, Tuesday, 13 November 2018, was brief. The Hansons indicated that they had received "some fairly basic advice" overnight, and had decided to “withdraw our matter”. [23] There was then a discussion about the legal costs of the cross-claim in which the Senior Member said “I’m going to give everybody an opportunity to say every word that they want in connection to that issue”. [24] Directions were given for the filing of written submissions on costs.

17. [29]

    The Senior Member then confirmed that Metricon’s case was closed on “the builder’s claim”. He then said to the Hansons:

18. [30]

    He then asked if there was “anything further” from Mr Hanson and the following dialogue ensued:

19. [31]

    This exchange, and the one the previous day, suggests that the Senior Member and the Hansons were at cross-purposes as to what the “liquidated damages” claim was. Mr Hanson seemed to think that it related to the defence to Metricon’s claim whereas the Senior Member was using the expression to refer to the cross-claim.

20. [32]

    The Senior Member said the proceedings on the builder’s claim were now at an end and he would “get out [his] decision as soon as possible”. It seems from the documents in the Court Book that orders were made, and short reasons delivered, later that day. [27] The Appeal Panel said at [43] that the Member reserved his decision on Metricon’s claim but later at [54] said the Member did not reserve his decision. [28] Based on the transcript and dates on the documents it appears that the Member may have adjourned briefly and returned on the same day to make orders and deliver his reasons.

21. [33]

    The Senior Member set out the terms of the contract and relevant variations and claims for interest. All that was said of the defence was this:

22. [34]

    An order was made in favour of Metricon in the sum of $208,757.74.

The appeal to the Appeal Panel

1. [35]

   The Hansons appealed to the Appeal Panel pursuant to the provisions in s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”) which provides for internal appeals as follows:

2. [36]

   The grounds of appeal before the Tribunal were set out in the “Plaintiff’s Amended Appeal Submissions”. [30] To paraphrase these grounds, it was asserted that there was:

3. [37]

   Written submissions were filed and the case was heard on 25 February 2019. Judgment was delivered on 31 May 2019: Hanson v Metricon Homes Pty Ltd [2019] NSWCATAP 133. Leave to appeal was refused and the appeal was dismissed. A stay on the orders of the Senior Member was lifted.

The appeal to this Court

1. [38]

   A summons was filed in this Court on 15 August 2019. An amended summons was filed on 6 September 2019. A further amended summons was filed in Court on 13 December 2019. I will disregard the earlier versions of the document and refer to the final incarnation as “the summons”.

2. [39]

   The summons sets out the “details of the appeal” as an “appeal from the whole of the decision below in AP: 18/50018.” The file number relates to the appeal determined by the Appeal Panel.

3. [40]

   The appeal is brought pursuant to s 83 of the NCAT Act which is in the following terms:

4. [41]

   The orders sought in the summons are as follows:

5. [42]

   The summons raised the following grounds of appeal:

6. [43]

   Written submissions were filed in advance of the hearing. The written submissions filed for the Hansons were directed to the conduct and decisions made by the Senior Member. In essence, the submissions asserted that the conduct of the proceedings before the Senior Member was “unorthodox” and that there was a denial of procedural fairness on a number of bases. The written submissions did not address ground [3] at all.

7. [44]

   Metricon’s written submissions asserted there was no error in the reasoning of the Appeal Panel and stressed that “[t]he appealable decision is that of the Appeal Panel, not that of Senior Member Goldstein”. [31]

8. [45]

   At the oral hearing in this Court, a document was handed up that was relevant to the second ground of appeal and to an issue of estoppel and its relationship to the asserted lack of procedural fairness. [32] A Joint Court Book became Exhibit A and a joint report by a Mr Rafeletos and a Mr Barry was Exhibit B. The latter document was before the Appeal Panel but was not in the Court Book. It went to the issue of whether there was any allegation of incomplete work in the proceedings at first instance.

9. [46]

   The parties first addressed the issue of the extension of time. The appeal was lodged around six weeks out of time and Metricon opposed the extension.

10. [47]

    Counsel for Metricon submitted that the merit of the proposed appeal does not impact on the question of whether to grant an extension of time because there would be “no injustice in the situation that’s portrayed on the papers.” I cannot accept that submission. 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”: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458; see also, for example, Dyason v Butterworth [2015] NSWCA 52 at [65], O’Connor v State of New South Wales & Anor [2017] NSWSC 598 at [64]-[66]. The ultimate question is whether to refuse the application for an extension of time would constitute an “injustice”: Gallo v Dawson at 459, Misrachi v The Public Guardian [2019] NSWCA 67 at [38]. Put another way the question is whether it would be “just in all of the circumstances to [extend time]”: Director of Public Prosecutions (NSW) v Hughes [2017] NSWSC 492 at [52] citing Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27. The prospects of success of the appeal are relevant to these ultimate questions. I propose to determine the application to extend the time to permit the Hansons’ appeal taking into account all relevant considerations including the merits of the appeal.

11. [48]

    The balance of the submissions was largely concerned with the question of procedural fairness. There was a specific issue as to whether part of the unfairness to the Hansons was that they are now confronted with a defence to their cross-claim which encompasses an assertion that they are estopped from pursuing their claim because the issue was litigated and resolved by the Senior Member and Appeal Panel, and because they agreed to be bound by the Zakos report.

12. [49]

    Very few submissions were addressed to the third ground of appeal, that is, the assertion that neither the Appeal Panel nor the Senior Member dealt with the Hansons’ defence in any meaningful way or at all.

What happened to the Hansons’ cross-claim?

1. [50]

   As to the cross-claim discontinued on the second day of the hearing before the Senior Member, the Hansons filed an application in the Consumer and Commercial Division of NCAT on 21 November 2018. [33] It sought a variety of orders including an order that they not be required to pay the damages ordered by the Senior Member and other damages in various large sums. For example, the total amount claimed on the cover sheet of the claim was stated to be $2,000,000. [34] In the alternative, there is a claim for unjust enrichment based on Metricon retaining the money paid by the Hansons under the building contract.

2. [51]

   Metricon filed points of defence with NCAT on 11 April 2019. Relevant to one of the arguments made in the present proceedings, is the part of the defence that pleaded an estoppel as follows:

3. [52]

   The defence also pleaded that the Tribunal had no jurisdiction because the amount claimed exceeded the jurisdictional limit of the Tribunal. I understand that the Hansons’ claim has since been transferred to this Court. [36]

4. [53]

   In view of the way in which the appeal was argued by the parties, I will address Ground 2, asserting a denial of procedural fairness, first. Very little attention was paid to Grounds 1 and 3 and, to a greater or lesser degree, they are dependent on the outcome of Ground 2.

Ground 2

1. [54]

   Ground 2 asserts that the Appeal Panel erred in failing to find that the Hansons were denied procedural fairness in the hearing before the Senior Member. The ground relies in particular on the failure to adjourn the hearing in circumstances where the Zakos report was received very late and where their solicitor withdrew on the morning of the hearing without any explanation being sought for his withdrawal. In those circumstances it is submitted that the Hansons were “not equipped” to conduct the hearing or to cross-examine the experts. This ground also emphasises the fact that the orders made in relation to the status of the Zakos report were “ambiguous” and the manner in which the matter was dealt with was unfair. It is submitted that the Hansons were essentially or actually denied the opportunity to present their defence and call a witness contradicting aspects of the Zakos report.

2. [55]

   Metricon asserts there was no procedural unfairness and relies on those occasions where the Senior Member explained aspects of the procedure to the Hansons in the course of the hearing. More fundamentally, it contends that the Appeal Panel made no error in its assessment of whether procedural fairness was afforded to the Hansons. It also submits that the ground should fail because no other result was possible based on all of the evidence. Thus, even if there is an extension of time and leave to appeal is granted, Metricon submits that the appeal should be dismissed.

3. [56]

   In order to ensure that procedural fairness is afforded during the course of proceedings, the Tribunal has a duty to provide a reasonable opportunity for each party to be heard and to present their case. In Re Association of Architects Ex Parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 63 ALJR 298 at 305, Gaudron J said:

4. [57]

   In addition to the common law, s 38(5) of the NCAT Act requires the Tribunal to ensure that parties understand proceedings and have an opportunity to be heard.

5. [58]

   The Appeal Panel delivered a relatively lengthy judgment but the part of the judgment that deals with the allegation of procedural unfairness is relatively brief. It set out, for example at [34], [38] and [39], a number of occasions when the Senior Member discussed the case and the procedure with the parties and an occasion when he raised a potential limitation issue with re-instituting its cross-claim.

6. [59]

   The Appeal Panel held at [47] that the Senior Member “had regard to the procedural history of the matters, the issues that needed to be determined in both applications, and the obligations imposed under s 36 of the NCAT Act.”

7. [60]

   The Appeal Panel relied at [37] on the owners’ concession at the hearing that given proceedings had been ongoing for almost two years, there had been adequate time for them to be organised to present their case. This was a reference to the exchange at p 15 of the transcript (CB 41) but seemed to disregard the fact that:

   1. (1)

      The concession was extracted after the Senior Member told the Hansons it was “not really acceptable” that they were “not organised” and stated “there’s been adequate time for you to be organised”;

   2. (2)

      Mr Hanson attempted to emphasise that they had legal representation until the hearing commenced but was cut off;

   3. (3)

      Two pages earlier Mr Hanson said that this was “the first time we’ve seen the bundle”; and

   4. (4)

      The Hansons repeatedly said during the course of the first day that they were unable to present their case and were not receiving a “fair” hearing. Their subjective opinion is not relevant to the question the Appeal Panel (or I) have to decide, but their repeated contention that it was unfair to proceed raised the issue in an unambiguous way and called for close scrutiny of the proceedings at first instance.

8. [61]

   The Appeal Panel found at [48] that the “transcript shows that [the Senior Member] was aware that the owners were at a disadvantage in the absence of legal representation, and in accordance with the obligations imposed on him under s 38(5) of the NCAT Act, had explained the issues”.

9. [62]

   The Appeal Panel accepted that, although they did not make an adjournment application in those terms, the Hansons were seeking an adjournment to obtain new lawyers or otherwise prepare themselves for the hearing. In relation to the adjournment application, the Appeal Panel set out at [33] the Senior Member’s reasons without adverse comment. In particular, the Appeal Panel said:

10. [63]

    The power to adjourn proceedings in the Tribunal is set out in s 51 of the NCAT Act:

11. [64]

    Section 36 provides the “guiding principles” to be applied by the Tribunal to its practice and procedure:

12. [65]

    Section 38 sets out the “Procedure of the Tribunal Generally” as follows:

13. [66]

    A few things can be said about these provisions. First, there is no statutory basis to say, as the Senior Member did, that the Hansons were required to establish “some extraordinary circumstance” before an adjournment could be granted. Second, the provision in s 38(5) casts a positive obligation on the Tribunal to ensure that the parties understand the nature of proceedings and the procedures of the Tribunal. Third, in addition to being “quick and cheap”, the Tribunal must facilitate the “just” resolution of proceedings.

14. [67]

    The provisions, and the obligations imposed on decision makers, are substantially similar to the legislation considered by the Court of Appeal in Jones & Anor v Ekermawi [2009] NSWCA 388 (Administrative Appeals Tribunal Act 1997 (NSW), s 73) and Italiano v Carbone & Ors [2005] NSWCA 177 (Consumer Trader and Tenancy Tribunal Act 2001 (NSW), s 35). I am satisfied that there was a similar failure to comply with the statutory obligations and the common law requirements of procedural fairness. The failure of the Appeal Panel to recognise this constituted an error of law.

15. [68]

    In particular, I am satisfied:

    1. (1)

       The Senior Member applied the wrong test in determining whether to grant the adjournment. Even allowing for the delays that had plagued the proceedings, there was no requirement for the Hansons to establish that there was “some extraordinary circumstance” that justified or required an adjournment. In any event, the fact that they had been left without legal representation on the morning of the hearing, when a lengthy expert report was served on the last business day before the proceedings and contrary to case management orders, and where it was clear that the unrepresented litigants had not seen the bundles of material upon which the decision was to be made, was capable of amounting to an “extraordinary circumstance”. The Appeal Panel failed to recognise this error and repeated the Senior Member’s words without comment.

    2. (2)

       The Senior Member granted leave for the Hansons’ solicitor to withdraw without having an understanding of why he was withdrawing. It appears he was under the misapprehension that the solicitor’s fees had not been paid, a matter the Hansons steadfastly refuted. The Hansons were not permitted to explain this until it was too late.

    3. (3)

       The Hansons misunderstood the status of the Zakos report or, alternatively, the Senior Member erroneously prevented them from challenging aspects of it, including by calling evidence. This situation arose because of the ambiguity surrounding the directions made on 11 April 2018 and 12 October 2018. The former direction, upon which the Senior Member acted, suggested the opinions in the report were to be binding on the parties because that is what they agreed to. However, the latter direction contemplated that the Hansons may wish to challenge the report and they were directed to have their expert present at the hearing. According to the transcript, they had their expert (Mr Covello) at the hearing. [38] However, in spite of Principal Member Rosser’s direction on 12 October 2018, the Senior Member said:

    4. (4)

       The Appeal Panel did not grapple in any meaningful way with the fact that the Hansons were denied the opportunity to call Mr Covello or with the direction that they have their expert available. All that was said on this issue was:

    5. (5)

       The Hansons misunderstood what the Senior Member was referring to when he spoke of the “liquidated damages claim” and did not understand that the Senior Member was proceeding on the basis that “effectively your defence was your cross-application”. [42] After the cross-application was withdrawn and the Senior Member indicated he would determine Metricon’s claim, it seems that Mr Hanson thought the “liquidated damages claim” was a reference to the defence of incomplete work or some other claim – he knew he and his wife had just withdrawn the cross-claim. He said:

    6. (6)

       Having withdrawn and re-instituted the cross-claim, and having been denied the opportunity to challenge the Zakos report, the Hansons are now confronted with a defence that includes the raising of an estoppel based on their agreement to be bound by the Zakos report in the earlier hearing. This possibility, which in fairness may not have occurred to the Senior Member and was not raised with him, was not explained to them when they withdrew the cross-claim.

    7. (7)

       There is no doubt that the Senior Member made some efforts to comply with s 38(5) of the NCAT Act. For example, he explained Tribunal procedures relating to expert evidence, identified the potential time limitation issue in relation to the Hansons’ case and adjourned for short periods on occasion to allow the Hansons time to discuss the evidence with their expert and seek advice. He also appeared to be vexed by the extensive delay in the proceedings and was justifiably keen and duty bound to move the litigation forward. Even allowing for these matters, upon reading the transcript in its entirety, I am satisfied that the Hansons were denied procedural fairness in their proceedings before the Senior Member.

16. [69]

    A decision whether or not to grant an adjournment is a discretionary one and it will be a rare case where that discretion is interfered with lightly on appeal. Further, it will be a rare case where the refusal of an adjournment is such as to give rise to a question of law as required by s 83 of the NCAT Act. On the other hand, whether a litigant has been denied procedural fairness constitutes a question of law. I am satisfied that the combination of the matters referred to above constitute a denial of procedural fairness in the proceedings before the Senior Member and that the failure of the Appeal Panel to recognise this amounted to an error of law.

Ground 1

1. [70]

   Ground 1 asserts that the Appeal Panel erred in failing to grant the Plaintiffs leave to appeal pursuant to s 80(2)(b) of the NCAT Act.

2. [71]

   In accordance with clause 12(1) of Schedule 4 of the NCAT Act, the Appeal Panel’s discretion to grant leave is enlivened if the Panel is satisfied that:

3. [72]

   To satisfy the Panel that leave should be granted, it is enough that the appellant may have suffered a substantial miscarriage of justice, not that this was the actual outcome.

4. [73]

   In Collins v Urban [2014] NSWCATAP 17 at [71] and [76], the Appeal Panel adopted the High Court’s explanation of what constitutes a ‘substantial miscarriage of justice’ in the context of the criminal law (see, for example, Mraz v The Queen (1955) 93 CLR 493 at 514), to the meaning of this term in the context of cl 12(1) of Schedule 4 of the Act.

5. [74]

   Based on the matters in cl 12(1)(a), (b) and (c), I am satisfied that a substantial miscarriage of justice may have been suffered in circumstances where there was a significant defect in the way the matter was conducted or decided which deprived the appellant of a “chance which was fairly open” for a different and more favourable outcome.

6. [75]

   The Hansons put on a defence to the original claim and later filed a cross-claim which covered some of the same territory as the defence. When they withdrew the cross-claim during the hearing, the Senior Member appeared to treat it as a withdrawal of the defence – a matter the Hansons did not understand. The Senior Member referred to the defence in his reasons, but mainly to emphasise that it did not allege Metricon was not entitled to repayment. He referred to a few of the particular complaints raised in the defence, but failed to explain why they might not impact upon the amount to be awarded to Metricon. The Hanson’s attempt to challenge the Zakos report, and to call their own expert, was rejected as described earlier in this judgment. The Hansons were denied the ability to dispute the findings set out in the Zakos report, despite having Mr Covello present on the day of the hearing.

7. [76]

   If the Senior Member had taken into account the Hansons’ defence or allowed the opinion of their expert to be heard, there is a chance that the Hansons may have achieved a different and more favourable outcome, that is a judgment for Metricon but in a smaller sum.

8. [77]

   I am satisfied that the denial of procedural fairness may have resulted in the Hansons suffering a substantial miscarriage of justice and that leave to appeal should have been granted.

9. [78]

   I propose to uphold this ground of appeal.

Ground 3

1. [79]

   In view of the disposition of grounds 1 and 2 and the absence of any substantial submissions on the issue, it is unnecessary to go into great detail in relation to the third ground of appeal. This ground asserts that the Appeal Panel erred in law by failing to adequately (or at all) consider the second ground of appeal which challenged the Tribunal’s finding that the Plaintiffs “had not raised incomplete work”.

2. [80]

   The defence to Metricon’s claim, which has the appearance of having been drafted by a lay person, asserted “the build is incomplete and the work done is of poor quality”. [44]

3. [81]

   Apart from mentioning it, this assertion was not dealt with by the Senior Member in the reasons for his decision. All that was said was that “they assert that the build [is] incomplete” but that “there is no assertion that the builder is not entitled to payment”. [45] While the reasons did not need to be extensive, there needed to be some engagement with the defence, the assertion that the build was incomplete, and why that did not encompass an assertion that Metricon’s claim should be denied or that the amount of damages be reduced.

4. [82]

   The Appeal Panel denied leave to argue this ground of appeal. In doing so, it did no more than refer to the Senior Member’s “succinct” reasons, determine that the Senior Member “had regard to the elements of the Owners’ defence”, and accept that the Senior Member was not required to “go into detail” because the Hansons had withdrawn their cross-claim. It concluded that the Hansons were not denied the opportunity of a different, more favourable, result.

5. [83]

   While this third ground of appeal may not warrant a grant of leave on its own, because the allegation of incomplete work was argued in a very limited fashion, [46] it is difficult to disentangle from the more serious assertion that there was a denial of procedural fairness. The situation seems to be that the defence was dealt with in a peremptory manner because the Hanson withdrew their cross-claim.

6. [84]

   I would also uphold this ground of appeal.

Application for an extension of time

1. [85]

   The Hansons require and sought an order to extend time for the bringing of the appeal pursuant to s 84(2)(b) of the NCAT Act. The delay in filing the summons was something in the order of five weeks. Affidavit evidence explains this delay by reference to Mrs Hanson’s serious illness. She has cancer and was undergoing chemotherapy during the period around and following the decision of the Appeal Panel. This is asserted in an affidavit of Mr Hanson and in various medical reports within the Court Book. [47] Mr Hanson says that the couple were “also under significant financial distress” and sought advice from various legal centres, the Legal Aid Commission and firms that offered pro bono assistance. Until they contacted their current lawyers, they were unable to obtain legal assistance until 15 August 2019. [48]

2. [86]

   Against this is the fact that the proceedings before the Tribunal were obviously subject to procedural complexity and delay, matters that concerned both the Senior Member and the Appeal Panel. By the time the hearing came on before me, it was over three years since Metricon filed its claim with NCAT. This delay militates against granting the extension of time.

3. [87]

   However, the delay in filing was a relatively small portion of the overall delay and the delay has been explained satisfactorily. Further, the second ground of appeal asserting a denial of procedural fairness is a matter of real substance and should be upheld.

4. [88]

   I would extend time to file the summons.

Orders

1. [89]

   As I understand it, the judgment entered in the Tribunal was registered for enforcement in the District Court. The District Court proceedings should be stayed pending the outcome of the proceedings before the Tribunal.

2. [90]

   I make the following orders:

   1. (1)

      Pursuant to s 84(2)(b) of the Civil and Administrative Tribunal Act 2013, extend time for the filing of the summons.

   2. (2)

      Pursuant to s 83 of the Civil and Administrative Tribunal Act 2013, grant leave to appeal against the decision of the Appeal Panel dated 31 May 2019 and known as Hanson v Metricon Homes Pty Ltd [2019] NSWCATAP 133.

   3. (3)

      Set aside the orders of the Appeal Panel made on 31 May 2019 and in lieu thereof make the following orders:

   4. (4)

      Proceedings 2019/00006261 in the District Court of New South Wales are stayed pending the determination of Metricon’s claim in the Civil and Administrative Tribunal.

   5. (5)

      The defendant is to pay the costs of and incidental to the appeal to this Court.