Where Perception is not always Reality

Slaven v Bryant [2020] NSWCA TAP168

How you come across at trial can have an impact on the outcome but it isn't everything.  On 7 August 2020 the NCAT Appeal Panel reviewed a decision of Senior Member Wilson dated 24 January 2020 in the Home Building Division of NCAT.  There were several appeal points but for the present purposes the relevant issue was whether the Tribunal Member had based the decision on the "demeanour" of the witness.

 

Background

Briefly, the dispute was between a consumer and a construction business relating to a shed.  The consumer believed that a fixed contract price of $24,000.00 had been agreed whereas the construction business claimed to have agreed a "do and charge" or "costs plus" arrangement.  Between May and August 2018 the shed was constructed and towards the end of that process the dispute arose.  By that date the consumer had paid invoices amounting to $32,617.00 and had received further invoices totalling $42,913.00.

NCAT proceedings were commenced with the consumer claiming defective workmanship and compensation totalling $71,000.00.  The proceedings were defended by the builder who also made a counter claim against the consumer for the unpaid invoices.  The outcome was that NCAT ordered the consumer to pay $42,913.00 to the construction company for the unpaid invoices.

There were five grounds of appeal, including questioning whether the Tribunal had the power to hear the matter under the Home Building Act, however the issue for present purposes was whether NCAT based the outcome on the "demeanour" of the consumer.

The NCAT appeal panel relied on the High Court of Australia decision of Fox v Percy [2019] HCA28 which provided that the consumer needed to establish that the earlier decision was based on an impression of demeanour in contradiction to inconvertible evidence which would make the finding "glaring improbable and contrary to compelling inferences".  In rejecting the appeal, the Appeal Panel found that the consumer had failed to establish that the decision had been based on demeanour and which was contrary to incontrovertible evidence.  In fact the Appeal Panel found that the Tribunal Member largely referred to objective evidence and limited any reliance on the demeanour of the witnesses.  The Tribunal Member had provided detailed reasons that included an assessment of the demeanour of the witnesses, however demeanour was not the only basis for the decision.

This case highlights two key issues:

  1. Contracts and variations to contracts need to be clearly written so that the terms of the contract are transparent and easy to understand.  This is particularly in relation to how charges will accrue and be paid.
  2. In the proceedings the construction company was legally represented whereas the consumer was not.  Where a Home Building Act claim exceeds $30,000.00, parties are often allowed to be represented by a lawyer.  Proper presentation of a case and the evidence required are essential skills that a lawyer brings to any legal proceedings and may be the difference between success and failure at trial.