Abed v Cosgrove trading as Alison Arts; Cosgrove v Abed

NCAT Appeal Panel|2017-07-10

BACKGROUND

The appellant to the appeal ('Abed') is the owner of a 2011 model Holden Commodore VE Sportswagon SSV. The respondent to the appeal ('Cosgrove') conducts a business painting vehicles with artwork. In 2015 the parties orally contracted for Cosgrove to paint a 'grim reaper' upon the external surface of Abed's vehicle and that Abed would pay for the work by instalments. The vehicle needed to have a 2 pack clear-coat applied after the artwork was finished. Kurri Kurri Collision Centre Pty Ltd ('Kurri Kurri') was to perform this work by arrangement between Cosgrove and Kurri Kurri. The work to the vehicle occurred during the period from February 2015 to July 2015. Various documents entitled 'quotations' were sent during the course of the work. Abed paid Cosgrove $4,050.00 and a tax invoice was sent by Cosgrove dated 9 July 2015.

GROUNDS OF APPEAL OF ABED

Abed filed a Notice of Appeal on 28 April 2017, stating that the decision was received on 4 April 2017.
The grounds of appeal can be summarised as follows: Errors of Law 1. Making a finding that Cosgrove's Expert, Mr Black, had inspected the vehicle when he had not, which resulted in the Tribunal giving disproportionate weight to the evidence of Mr Black 2. Failing to take into account that the experts from who Abed obtained quotations (including Mr Judd) had inspected the vehicle. 3. Failed to apply correct legal principles when assessing damages. Non-Errors of Law 1. Failing to give "adequate consideration" to Abed's expert evidence. 2. Made a decision that was not fair and equitable and against the weight of evidence.
We are satisfied that Abed's appeal has been filed within 28 days from the date on which Abed was notified of the decision. Accordingly, the appeal has been brought within the requisite time period under s 25(4) of the Civil and Administrative Tribunal Rules 2014.

SCOPE AND NATURE OF INTERNAL APPEALS

Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 (NCAT Act). Under s 80 (3) of the NCAT Act, the Appeal Panel may deal with an internal appeal by way of a new hearing if warranted and may permit fresh evidence. The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on that basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: "... [T]here was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. 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.
The Appeal Panel's powers in determining an appeal are set out in s 81 of the NCAT Act, which states: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) 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. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal.

Errors of law Giving Rise to an Appeal as of Right

In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel considered what is required to establish a question of law that would give rise to an appeal as of right. Without providing an exhaustive list of possible questions of law, the Appeal Panel referred at [13] to the following: (1) Whether there has been a failure to provide proper reasons. (2) Whether the Tribunal identified the wrong issue or asked the wrong question. (3) Whether a wrong principle of law has been applied. (4) Whether there was a failure to afford procedural fairness. (5) Whether the Tribunal failed to take into account a relevant (mandatory) consideration. (6) Whether the Tribunal took into account an irrelevant consideration. (7) Whether there was no evidence to support a finding of fact. (8) Whether the decision was so unreasonable that no reasonable decision-maker would have made it.
However, to succeed on an appeal on an error of law, Abed must show that the error was "one upon which the decision depends, so that the decision is vitiated by the error" (Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 419; Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 at [78]; 188 LGERA 26; Trazivuk v Motor Accidents Authority (NSW) & Ors (2010) 57 MVR 9; [2010] NSWCA 287 at [110]), and even if an error of law has occurred which is sufficiently material to the decision, the appeal will fail if it is clear the same outcome would be reached in any event had the correct legal principle been applied.
When considering whether there has been an error "it is important to have regard to the nature of the contested issues and the cases presented by the parties at first instance" (Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [63]). Further, "where there has been a fair attempt by a judicial officer who is plainly trying conscientiously to make findings of fact, not lightly is it to be inferred that the process has miscarried" (Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [67]).

The Finding That Cosgrove's Expert Mr Black had Inspected the Vehicle

The salient finding is contained at paragraph [125] of the decision as follows: "Mr Gary Black of Automotive Assessing Solutions Pty Ltd gave evidence on behalf of the Respondent. Mr Black inspected the Applicant's vehicle in late 2016. Mr Black gave evidence that the Applicant's vehicle needs to be resprayed. In Mr Black's opinion the quotes for $26,000.00 are over quoted for what is required. There is no need for the car to be stripped back to bare metal before being resprayed. There is no need for parts with overspray to be replaced. Mr Black stated that the Applicant had supplied quotes to obtain a showroom restoration. The quotes are over exaggerated. The Applicant is entitled to have her vehicle returned to the original GMH factory finish; it's pre-incident condition. The quote from Gerrard's Smash Repairs, in the sum of $6,847.50, is fair and reasonable for the work".
Abed submits that it is clear from the Mr Black's report, and the transcript of the relevant parts of the evidence at the hearing, that he did not physically inspect the vehicle. Mr Black was provided with photographs of the vehicle and the various quotations obtained regarding the cost of repainting the vehicle. It was submitted that as a result of misunderstanding the evidence, the Member gave undue weight to Mr Black's opinion (and the opinion of Mr Perkins), and should have accepted the evidence of Abed's expert Mr Judd, and the quotations obtained by Abed by persons who had inspected the vehicle, over the opinion of Mr Black.
A tribunal that decides a question of fact when there is no evidence in support of the finding makes an error of law (Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [91]).
We accept that Mr Black's report clearly states that he did not physically inspect the vehicle, and only inspected photographs and documents. The transcript extracts each party provided in respect of the appeal confirm that Mr Black did not physically inspect the vehicle, and he was cross examined in this regard with the purpose of establishing that the failure to physically inspect the vehicle diminished Mr Black's opinion.
The sentence contained in paragraph [125] "Mr Black inspected the Applicant's vehicle in late 2016" does not correctly reflect the evidence. To correctly reflect the evidence, the Member should have found "Mr Black inspected photographs and quotations in respect of the Applicant's vehicle in late 2016" rather than "Mr Black inspected the Applicant's vehicle in late 2016".
However, when viewed in its context, paragraph [125] of the Tribunal's reasons is a summary of the evidence of Mr Black contained in his report and the evidence he gave at the hearing. There is further reference to Mr Black's evidence at paragraph [80] of the Member's reasons. As discussed previously, Mr Black gave evidence at the hearing as did Mr Judd. It was clear on the evidence of each party that there was a significant dispute as to whether the repainting of the vehicle required the labour charges and component charges as was set out in the quotations obtained by Abed. Cosgrove argued at the hearing, and before the Appeal Panel, that the quotations obtained by Abed (including the estimate given by Mr Judd) contained numerous items of the vehicle that did not require repainting as a result of the deterioration of the paint caused by the failure to apply clear coat to the work performed by Cosgrove, and inflated charges in respect of labour costs and time estimates to do the work.
The key factual finding made by the Member was that the vehicle needed to be resprayed to its "original…factory finish". The Tribunal then had to consider competing expert opinion evidence in respect of achieving that outcome. The finding that Mr Black "inspected the vehicle" is a factual finding that only goes to the weight of the competing expert evidence (in respect of the evidence of the various experts who had either given a quote or provided an expert report) to assist the Tribunal to determine what work is appropriate, and it's cost.
We are not satisfied that the factual finding that Mr Black "inspected the vehicle" is salient to any issue other than the weight of evidence. The reasons of the Member, when assessed in total, do not reflect that the Member failed to understand the evidence, or failed to consider relevant evidence, or failed to grapple with the competing expert evidence (Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [60]). Abed did not identify as a ground of appeal that the Tribunal failed to give adequate reasons explaining why the Tribunal accepted the evidence on quantum by Cosgrove's experts rather than Abed's experts. In any event, although the reasons on quantum are economical, they explain with sufficient detail the reasons why the Member made the salient findings on the issue of quantum, and are adequate.
We are satisfied that, although there was an error in the finding that Mr Black had "inspected the vehicle", that error of itself was not one upon which the decision depends so that the decision of the Tribunal is not vitiated by the error (see para 38 above). However, whether the finding resulted in the Member giving disproportionate weight to the evidence of Mr Black, and insufficient weight to the evidence of Mr Judd and the written quotations obtained by Abed are pertinent to the issue of whether the Appeal Panel is satisfied that Abed may have suffered a substantial miscarriage of justice under Clause 12(1) of Sch 4 of the NCAT Act, which we will consider below.

Assessment of Damages

The Member found that Cosgrove had been "negligent" and had breached the consumer guarantee referred to in section 60 of the ACL that the services supplied by Cosgrove would be rendered with due care and skill.
Although the Member made findings that Cosgrove was negligent (par [108]) and was entitled to damages for breach of contract (par [116]), the Appeal Panel is of the view that the Tribunal Member intended to and did award the $10,897.50 pursuant to s 236 of the ACL to Abed for breach of s60 of the ACL.
Considering the evidence before the Member, we are not satisfied that any error of law has occurred in respect of the application of legal principles for the assessment of damages. The Member adopted the methodology of awarding damages to put Abed in the position she would have been immediately prior to taking the vehicle to Cosgrove, including a refund of the monies she paid Cosgrove, and it was open to the Member to apply such a methodology on the evidence before her. The Member held that Abed was entitled to have her vehicle returned to the original GMH factory finish; its pre-incident condition (par [125]) and that the $6,847.50 quoted by Gerrards Smash Repairs was a fair and reasonable amount for this work.
For the reasons expressed above, we are not satisfied Abed has proved error of law which vitiated the decision. We will now consider whether leave to appeal should be granted on the basis a substantial miscarriage of justice may have occurred under Cl 12 Sch 4 of the NCAT Act.

Failure to Give Sufficient Weight to Abed's Evidence, and Decision Against the Weight of the Evidence.

The grounds of appeal that the Member failed to give adequate weight to Abed's evidence and concomitantly gave excessive weight to Cosgrove's evidence, including the evidence of Mr Black pertain to the same issue, which is whether the decision was against the weight of the evidence.
To establish that the decision was against the weight of evidence, Abed must establish that "the evidence in its totality preponderates so strongly against the conclusion"; a party seeking a new trial on this ground needs an exceptionally strong case because it must be shown that the evidence preponderates against the decision to show that it was unreasonable and unjust (Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41 and 42) or the evidence "so strongly preponderates…as to lead to the conclusion" that the trier of fact has "either wilfully disregarded the evidence or failed to understand or appreciate it" (Bell v Thompson [1934] NSWStRp 34; (1934) 34 SR (NSW) 431 at 437; Anderson v Armitage [2015] NSWCATAP 72 at [57]).
We are not satisfied that the decision of the Member so strongly preponderates against the evidence that it satisfied the test of being "against the weight of evidence". In this regard, we shall refer to the evidence of the respective parties at the hearing before the Member.
Abed submits that the Member should have given significantly more weight to the evidence of the persons who had physically inspected the vehicle and given quotations, over the evidence of Mr Black and Mr Perkins who did not physically inspect the vehicle, but opined (Mr Black in oral evidence at the hearing; and Mr Perkins in his report) that the quotation of Gerrard's Smash Repairs was an appropriate amount to compensate Abed for the breach by Cosgrove.

Expert Evidence Relied Upon by Abed at the Hearing

There were deficiencies in the evidence relied upon by Abed that affected its weight. Mr Judd, in his undated report that was tendered as evidence, states that the vehicle "would need to be stripped of all components necessary to remove all airbrush work" and "mouldings, rubbers, lights, trims and badges would also need to be replaced to bring the vehicle back to its pre-airbrushed condition". Mr Judd estimated the cost for labour and materials would be $28,200.00 inclusive of GST.
However, Mr Judd's report does not provide an itemised breakdown of how he estimated the cost to be $28,200.00, nor does Mr Judd's report adopt the NCAT Expert Witness Code of Conduct set out in Practice Note 3 of NCAT, nor provide details of his experience and qualifications (unlike the report of Mr Black).
The author of the quote of One Stop Repair Shop Pty Ltd dated 16 November 2015 was not called to give evidence. No report is attached to the quote setting out details such as how long the vehicle was inspected for. The relevant quotation for $26,433.00 includes a labour component for removing "all exterior fittings" and "front/rear bars" of 76 hours, with a further 22 hours to repair the vehicle; and a further 104.8 hours to repaint the vehicle. There is no explanation as to how such figures were obtained.
The quotation of David Stansbury Pty Ltd t/as Speedies Auto dated 6 August 2015 does not set out the labour component or cost of labour and materials. The quotation simply lists items of the vehicle that are to be "removed and replaced"; "repaired" and "repainted" and gives a single global figure of $26,636.36 for the cost of such work . The author of the quotation was not called to give evidence, nor provided a report explaining how he estimated the cost of repainting the vehicle was $26.636.36. The quotation does not adopt the NCAT Expert Witness Code of Conduct, which also reduces its evidentiary weight.
In respect of the quotation of Steve Koulis Smash Repairs dated 21 September 2016 in the sum of $26,343.92, although the quotation is itemised, Cosgrove subsequently obtained a statement of George Koulis of Steve Koulis Smash Repairs that reduced the veracity of the quotation, and that items of the vehicle could be "cleaned instead of replaced" and stated that the "air brush work could be removed very quickly" (discussed at paras [120]-[121] of the decision).

Expert Evidence Relied Upon by Cosgrove at the Hearing-Mr Gary Black

The reasons of the Member, and the transcript extracts provided by both parties, show that Mr Black was questioned extensively on the issue of quantum. The Member set out the evidence of Mr Black at paragraph [125] of the reasons. In essence, Mr Black gave evidence that, due to his experience in the repair industry and experience in performing assessments for motor vehicle insurers, he was capable of giving an opinion on the cost of repainting the vehicle despite having not physically inspected the vehicle. Mr Black gave evidence that the quotations obtained by Abed were "exaggerated" and were appropriate to put the vehicle in a "show condition" rather than in a factory condition for reasons that included that there was no need for the vehicle to be stripped back to bare metal before being resprayed, and there was no need for parts with overspray to be replaced. Mr Black agreed with the opinion of Mr Perkins (who was not called to give evidence) that the quotation of Gerrard's Smash Repairs was appropriate for the cost of repainting the vehicle to factory condition.

Member's Assessment of the Competing Opinions

The Member had the benefit of both Mr Judd and Mr Black being cross examined, and there was a clear disagreement and factual contest between the experts as to what work was appropriate to restore the vehicle to the condition it was in immediately prior to the vehicle being taken by Abed to Cosgrove. The Member also had the benefit of hearing evidence from Mr Ruisi. The Member was entitled to accept the evidence of Cosgrove's experts over Abed's experts on the issue of quantum. We are not satisfied that the Member misunderstood the evidence, notwithstanding the reference in the reasons to Mr Black having inspected the vehicle. The acceptance of Cosgrove's expert evidence over Abed's expert evidence did not "so strongly preponderate against the weight of evidence" that a substantial miscarriage of justice has occurred.
Other than Abed's submission that the Member gave excessive weight to Mr Black's evidence and did not give sufficient weight to the evidence Abed's experts, nothing was advanced in submissions that the decision was not fair and equitable. In any event, we are not satisfied the decision was unfair or inequitable.
An appeal is not simply an opportunity for a dissatisfied or unsuccessful litigant to re-argue the case they put at first instance (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]). An error of law or the grounds set out in Cl 12 Schedule 4 of the NCAT Act must be established. In circumstances where Abed has failed establish an error of law that vitiated the decision or that leave to appeal should be granted under Cl 12 Schedule 4 of the NCAT Act, the appeal fails.

COSGROVE'S PROPOSED CROSS APPEAL AND APPLICATION FOR STAY OF THE ORDERS DATED 30 MARCH 2017

Cosgrove filed a proposed cross appeal and application for a stay in Matter AP 17/26175 on 8 June 2017, subsequent to the Appeal Panel directions hearing on 16 May 2017 in Matter AP 17/19509 (Abed's appeal). Accordingly, when Abed's appeal was listed for hearing on 10 July 2017, no directions had been made regarding the filing and serving of submissions in Cosgrove's cross appeal, or stay application.
At the Appeal Panel directions hearing on 16 May 2017 in Abed's appeal, the Appeal Panel had (at direction 8) noted that Cosgrove "may seek to file an appeal by way of a cross appeal" and that any cross appeal must be filed and served on or before 8 June 2017. However, that direction was not a finding that Cosgrove had permission to file and serve a cross appeal outside the limitation period for filing an appeal. Whether leave should be granted must be determined.
The issue of whether the Appeal Panel grants leave to extend the limitation period to file the cross appeal is dealt with in the reasons that follow. The directions also put the parties on notice that the Appeal Panel may deal with the matter by way of a new hearing under Section 80(3) of the NCAT Act, and for the parties to file and serve any fresh evidence relied upon.
On 25 July 2017, Cosgrove filed a proposed amended cross appeal. That document identifies the proposed grounds of appeal as follows: 1. The Tribunal had given insufficient weight to the evidence of Mr Josh Schuster and Mr Brad Crawford that "the clear coat window does not apply to airbrush art as per the evidence given by the technical product manufacturer from the paint manufacturer". 2. The evidence of Cosgrove's experts contradicts the findings made by the Tribunal at paragraphs [79]; [108]; and [109] of the decision. 3. The Tribunal should not have allowed the evidence of Mr Judd, whose report did not comply with the NCAT Expert Code of Conduct, and Mr Judd "stands to gain financially" from the decision in favour of Abed. 4. The Tribunal erred in finding that Cosgrove repudiated the contract. 5. The Tribunal gave insufficient weight to the evidence of Mr Crawford; Mr Jeffrey and Mr Black that there were no deep scratches or overspray on the vehicle and the appearance of the vehicle was consistent with standard practice. 6. The decision was not fair and equitable, and was against the weight of evidence.
At the conclusion of the final date of hearing in the Appeal Panel (the hearing not having concluded on the first day), the Appeal Panel made directions regarding the filing and serving of evidence and submissions in respect of the cross appeal and application for a stay. The Appeal Panel directed that it would consider if the cross appeal (which also required an extension of time) and stay application could be determined on the papers and without requiring a further hearing date, in accordance with Section 50 (2) of the NCAT Act, and for the submissions of the parties to also deal with whether a further oral hearing was sought.
Each party filed and served documents and submissions. Cosgrove filed her documents and submissions on 23 August 2017. They included a considerable volume of material, including transcript and 46 pages of submissions. Abed filed her written submissions on 5 September 2017 and Cosgrove filed submissions in response on 14 September 2017. The Appeal Panel has read all of these submissions and other material and has taken these submissions and other material into account in its deliberations.
Both parties consented to the balance of the hearing being conducted 'on the papers'. The Appeal Panel is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and other documents provided to the Tribunal and it makes orders dispensing with a further hearing in Matter AP 17/26175. Further, Cosgrove raised in oral argument the issues it relies upon in respect of the cross appeal in the context of responding to the appeal of Abed, and the issues have been thoroughly covered in the written submissions of the parties.
The cross appeal has been filed outside the 28 day period from the date that the decision of the Member had been received by Cosgrove. If the limitation period to file the cross appeal is not extended by reason of Section 41 of the NCAT Act, the cross appeal must fail.
The submissions of Cosgrove contain multiple assertions that Abed lacks credibility; has "concocted" evidence; and "colluded" with her experts to exaggerate her claim. Abed's submissions strongly deny such allegations. We have considered both parties submissions regarding the conduct of the respective parties. We consider that such submissions arise from the animosity the parties now hold towards each other, and have little, if any, relevance, to the issues for determination in the cross appeal.
Further, we consider that these allegations do not have any relevant bearing on whether the Tribunal Member was entitled to accept the evidence of Mr Black on the cost of the repair work nor the evidence of Mr Judd and Mr Crawford that clear-coat must be applied over the artwork within a time frame of around 12 - 24 hours.
In respect of the reason why the proposed cross appeal was filed out of time, Mr Cosgrove stated that Mr and Ms Cosgrove had been prepared to "live with" the decision of the Member, but when Abed appealed and there was prospect that the amount of damages payable would be increased, Cosgrove decided to cross appeal. Further, Mr Cosgrove stated that Abed had made derogatory comments about Ms Cosgrove's business on Facebook, which had provided a further motivation for the cross appeal. Mr and Ms Cosgrove also complained of the financial impact of the orders.
To be granted leave to cross appeal, Cosgrove must establish that the limitation period be extended. The relevant principles were set out by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22. The Appeal Panel must consider the following principles: 1. The length of the delay. 2. The reason for the delay. 3. The prospects of success of the party that seeks an extension, which is usually whether the party has a fairly arguable case. However, if there is significant prejudice to the other party by reason of extending the limitation period, or the explanation for the delay is less than satisfactory, it may be relevant to consider whether the party seeking the extension has a case of more substantial merit than merely being fairly arguable.
We are not satisfied that the period for Cosgrove to file her cross appeal should be extended. Although the length of the delay is not excessive, and does not obviously cause prejudice to Abed, the reasons for not filing an appeal within the relevant period are inadequate. Cosgrove was clearly aware of the decision, and able to obtain advice. Cosgrove's reason to cross appeal is primarily retaliatory in nature, in the sense that Cosgrove was not motivated to appeal until Abed had appealed.
Having considered the proposed grounds of appeal and the submissions of the parties, we are not satisfied there is any realistic prospect of Cosgrove succeeding in her proposed cross appeal in any event.
Cosgrove's grounds of cross appeal focus upon the findings of the Member that Cosgrove failed to provide services with due care and skill by failing to inform Abed that if clear coat was not applied to the paint of the vehicle within a discrete period of time, the paint would deteriorate and the subsequent application of clear coat would not rectify the damage.
The Member found at paragraph [105] that Cosgrove "did not advise the Applicant that there was a fixed window of time (namely less than 12 hours) for the application of clear coat" and found at paragraph [108] that Cosgrove allowing Abed to "collect the car without clear coat being applied to the artwork, and by not warning the Applicant about the limited window of time for the application of clear coat, the Respondent was negligent and did not provide services to the Applicant with due care and skill".
The Member referred to the evidence of text messages between the parties regarding the circumstances leading up to Abed collecting the vehicle from Cosgrove. Importantly, at paragraph [100] the Member set out a text message exchange between Abed and Cosgrove. Abed had texted the Cosgrove that she would pick up the car and "probably" take it to the spray painter for application of clear coat "in a couple of days" if Cosgrove supplied details of where to take the car. Cosgrove relevantly responded: "No problem, you can do that if you like. It would be better to take it from here, don't really want to be driving it around without clear coat…"
It is implicit from the findings of the Member that she found that Cosgrove had considered the issue of when clear coat should be applied (consistent with her expertise in operating a business applying artistic paintwork to vehicles) by reason of her comment that Abed should not be driving the vehicle around without clear coat having been applied, and failed to inform Abed that there was a discrete period in which clear coat needed to be applied to avoid deterioration of the paintwork. By reason of the Member's finding that Cosgrove had not provided services with due care and skill, it is also implicit from the Member's findings that a reasonable provider of artistic vehicle paintwork in the circumstances would have informed Abed that there was a discrete period to apply the clear coat.
The Member's reasons referred to the evidence of the experts regarding the "window" in which clear coat needed to be applied. Abed's expert evidence in this regard was Mr Judd (whose evidence has been referred to previously) and Mr Brad Crawford of Concept Paints.
Mr Judd stated that clear coat needed to be applied with 8 to 12 hours and failure to do so would leave the substrate unprotected with no chance of future coatings correctly adhering to the paintwork (paragraph [72] of the Member's reasons). Mr Brad Crawford had relevantly stated that the clear coat needed to be applied within 10 to 12 hours (paragraph [74] of the Member's reasons).
In the proposed cross appeal, Cosgrove referred to the evidence of Mr Schuster, technical product manager of DNA Paints. Cosgrove had obtained a brief report from Mr Schuster, and Mr Schuster gave evidence at the hearing by telephone. Mr Schuster gave evidence that can be relevantly summarised as that his business had a product known as "DNA intercoat clear" which could be applied and rectify defects in the paint and allow a clear coat to be applied, even 2 years after the airbrush paintwork had been performed.
Mr Schuster gave evidence at the hearing by telephone, and Cosgrove provided an extract of a transcript of evidence. In essence, Mr Schuster stated that his company had a product called "FX Intercoat Clear" which if applied would rectify fine scratches and provide a base for clear coat to be applied. The transcript relevantly states: Schuster: "So if there are fine scuffing and scratching in the OEM paintwork but it hasn't protruded thorough the layer of OEM paintwork then without obviously seeing the scratches, talking hypothetically here, but there is every chance that the FX intercoat clear would in fact fill those layers, if we are talking an OEM finish that has been finely sanded essentially by finely sanding we are scratching the surface and that's where product like this do fill them. They fill those sanding marks, those scratches. If we are talking about something that's gone thorough to the layer underneath that's a whole different situation here". Member: No intercoat has been applied and the last airbrushing was applied in July 2015, it's been a long time almost 2 years, would the FX intercoat still provide a chemical bond for the application of clearcoat? Schuster: Quite possibly yes. There are a number of factors that come into this but from a technical point of view the chemical composition of the basecoat would not have changed over that period. If the airbrush work is in a sound enough condition it could be applied over as long as it is cleaned and that sort of thing. The chemical make-up of both products still stands, it shouldn't be a problem. I would probably ask the question why was it so long though, it's not ideal but at the end of the day it's almost a hypothetical question but if the airbrush work is sound and it's been stored in a good enough way then it shouldn't be a problem".
Cosgrove also relies upon an email exchange between Shane Cosgrove and Mr Crawford, of Concept Paints in July 2016. As discussed previously, Abed relied upon an expert report from Mr Crawford, who had inspected the vehicle. That report, dated 17 May 2016, relevantly stated the vehicle's paintwork had "scratch marks throughout the mural work"; "overspray" and that the vehicle required repainting (including application of the murals) with "clearcoat the murals within a timeframe stated by the coating company (normally within a 10-12 hour period)."
Shane Cosgrove emailed Brad Crawford on 25 July 2016 asking: "Can you clarify why Concept Paints would not warrant its product on the vehicle, and the main reason why you are recommending the car needs to be redone?" Mr Crawford replied relevantly on 25 July 2016 as follows: "Concept, or any other paint company will not warrant another company's material being applied over the top of another. If the artist had have used Concept for the murals, and applied Concept Clear Coat over the top within the recommended time frame, then the company would warrant the performance and longevity of the paint applied. The only reason I am recommending the vehicle needs to be redone, is the clear coat has not been applied over the art work within the recommended timeframe. Most paint companies, if not all, will have a timeframe of around 12-24 hours depending upon the materials used and conditions. The conditions could be weather, equipment or even if an additive had been used to the paint".
Cosgrove has not raised absence of reasons in the grounds of proposed appeal, but grounds of appeal drafted by an unrepresented party must be considered broadly (John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 [12]).
The Member's reasons do not clearly indicate how she regarded the evidence Mr Schuster, although she referred to Mr Schuster's oral evidence. Failure to give reasons may constitute an error of law (Collins v Urban [2014] NSWCATAP 17 at [46]-[57]; Khan v Kang [2014] NSWCATAP 48 at [41]).
We are not satisfied that any failure to deal with the evidence of Mr Schuster materially affected the decision. The transcript of Mr Schuster's oral evidence clearly shows that his opinion that the DNA intercoat product of his company being able to rectify the deterioration of the paint was contingent upon many factors including the depth of the scratches; whether the airbrush work was in "sound enough condition"; and whether the vehicle had been stored in a "good enough way". Mr Schuster, unlike Mr Judd and Mr Crawford, had not inspected the vehicle. He stated the DNA intercoat product being applied after 2 years was "not ideal" and whether or not the product would rectify the defects and allow clear coat to be applied was "almost a hypothetical question".
Considering the uncertainties and caveats attached to Mr Schuster's opinion regarding whether or not the DNA intercoat product would effectively resolve the defects in the paintwork caused by clear coat not having been applied within a discrete period of time after Abed had taken back possession of the vehicle, we are satisfied that the evidence of Mr Schuster does not detract from the evidence of Mr Judd and Mr Crawford. Mr Judd found that the scratches on the vehicle were deep, rather than superficial. Mr Crawford's email to Shane Cosgrove does not assist Cosgrove. Mr Crawford again stated that the clear coat window was "12 to 24 hours" and there is nothing in Mr Crawford's email to support a proposition that the application of the DNA intercoat product would rectify the paint defects to Abed's vehicle and allow a fresh window to apply clear coat to the paint. Further, there is no evidence that Cosgrove informed Abed of the DNA intercoat product at any relevant time, nor any evidence Abed knew of it.
In respect of the ground of appeal that the written evidence of Mr Crawford supported the opinion of Dr Jeffrey and Mr Black that the scratches in the paintwork were not deep, the email from Mr Crawford to Shane Cosgrove does not support that proposition. Mr Crawford makes no concession regarding the depth of the scratches. At its highest, this ground of appeal goes to the weight of the evidence before the Member, and is not a ground of appeal based on an error of law. For reasons discussed further below, we are not satisfied that the findings of the Member are against the weight of evidence.
The ground of appeal that the Member should have rejected the evidence of Mr Judd on the basis that he did not adopt the NCAT Expert Witness Code of Conduct and was not independent of Abed is also without substance. An expert report may be admitted into evidence, and an expert may give evidence to the Tribunal notwithstanding that the NCAT Expert Witness Code of Conduct has not been adhered to. This is an issue that goes to the weight of the evidence, not its admissibility (Chi Building Pty Ltd v Wedgwood [2016] NSWCATAP 64).
The Member was entitled to accept that Mr Judd had appropriate expertise and was appropriately qualified to give expert evidence. The Member made no error in admitting Mr Judd's report into evidence, nor allowing him to give oral evidence. At the hearing, Mr Judd was cross examined by Shane Cosgrove regarding Mr Judd's opinion, expertise and relationship with Abed. Cosgrove's ground of appeal on this issue is, in substance, a complaint that goes to the weight of the evidence, rather than an error of law.
The ground of appeal that the Member erred in her findings regarding repudiation of the contract also fails. We do not discern that the Member made any error in applying the correct legal test to the issue of whether Cosgrove had repudiated the contract, or that Abed had accepted the repudiation and the contract was discharged. Breach of a contract by repudiation occurs when a party evinces an intention no longer to be bound by it, or to fulfil it only in a manner substantially inconsistent with his or her obligations (Cheshire & Fifoot, Law of Contract, 11th Australian edition at [21.12]). The Tribunal Member was entitled to conclude that Cosgrove repudiated the contract when she told Abed that she would have to pay $3,500 before the clear-coat was applied. The Tribunal Member was also entitled to find that Abed accepted Cosgrove's repudiation.
Cosgrove's ground of appeal that the decision was not fair and equitable as it was against the weight of evidence requires leave to appeal, as it is a ground of appeal not based on an error of law. To succeed in this ground of appeal, Cosgrove must show the evidence in its totality preponderates so strongly against the findings of the Member that the decision should be overturned (Anderson v Armitage [2015] NSWCATAP 72 at [54]-[58] and the principles discussed therein).
Having carefully considered the evidence, we are not satisfied that the decision was not fair and equitable or against the weight of evidence. On the evidence available to the Member, and the evidence before the Appeal Panel, we are satisfied the Member was entitled to make the findings that were made.
Cosgrove's proposed cross appeal fails, and accordingly it is futile to grant leave to extend the limitation period to file the cross appeal.
As Cosgrove has failed in the cross appeal, the application for a stay of the orders made by the Member must also fail.

COSTS

In written submissions, Abed seeks a costs order should she be successful in the proceedings in whole or part. Cosgrove's submissions do not address in any detail the issue of costs.
In circumstances where neither party has been adequately given the opportunity to make submissions on the issue of costs, we have made orders for the filing and serving of written submissions on the issue of costs.
The written submissions are to address issues that include the following: (i) the operation of Section 60 of the NCAT Act; (ii) the operation of Rules 38 and 38A of the Civil and Administrative Tribunal Rules 2014; (iii) in respect of Abed's appeal against Cosgrove, the principle that self-represented litigants are not entitled to costs other than in respect of out of pocket expenses (Cachia v Haines [1994] HCA 14; (1994) 179 CLR 403; Beattie v Wesley Mission [2017] NSWCATAP 120 at [14]-[15]).
The issue of costs is to be dealt with in the following manner: 1. Any application for costs is to be made in writing to the Tribunal (with a copy sent to the other party) within 21 days of the date of publication of these reasons for decision and is to be accompanied by a submission not exceeding three pages in length. 2. Any submission in response to the costs application is not to exceed three pages in length and is to be provided to the Tribunal and the other party within 21 days of receipt of the costs application. 3. Any submission in reply is to be provided to the Tribunal within 7 days thereafter. 4. In their submissions on costs, the parties are to address whether the issue of costs can be determined without a hearing, on the basis of the written submissions.

CONCLUSION

In Matter AP 17/9509 (Abed's appeal) the Appeal Panel makes the following orders: 1. Leave to appeal refused. 2. Appeal dismissed. 3. Any application for costs to be determined in the following manner: 1. Any application for costs is to be made in writing to the Tribunal (with a copy sent to the other party) within 21 days of the date of publication of these reasons for decision and is to be accompanied by a submission not exceeding three pages in length. 2. Any submission in response to the costs application is not to exceed three pages in length and is to be provided to the Tribunal and the other party within 21 days of receipt of the costs application. 3. Any submission in reply is to be provided to the Tribunal within 7 days thereafter. 4. In their submissions on costs, the parties are to address whether the issue of costs can be determined without a hearing, on the basis of the written submissions.
In Matter AP 17/26175 (Cosgrove's Proposed Cross Appeal) the Appeal Panel makes the following orders: 1. Oral hearing dispensed with and application determined on the papers in accordance with Section 50(2) of the NCAT Act. 2. Leave to extend the period to file the appeal refused. 3. Appeal dismissed. 4. Application for a stay dismissed. 5. Any application for costs to be determined in the following manner: 1. Any application for costs is to be made in writing to the Tribunal (with a copy sent to the other party) within 21 days of the date of publication of these reasons for decision and is to be accompanied by a submission not exceeding three pages in length. 2. Any submission in response to the costs application is not to exceed three pages in length and is to be provided to the Tribunal and the other party within 21 days of receipt of the costs application. 3. Any submission in reply is to be provided to the Tribunal within 7 days thereafter. 4. In their submissions on costs, the parties are to address whether the issue of costs can be determined without a hearing, on the basis of the written submissions.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 January 2018

LGRA 409 Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48 ; 188 LGERA 26 Trazivuk v Motor Accidents Authority (NSW) & Ors (2010) 57 MVR 9; [2010] NSWCA 287 Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 Bell v Thompson [1934] NSWStRp 34; (1934) 34 SR (NSW) 431 Anderson v Armitage [2015] NSWCATAP 72 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Khan v Kang [2014] NSWCATAP 48 Chi Building Pty Ltd v Wedgwood [2016] NSWCATAP 64 Cachia v Haines [1994] HCA 14; (1994) 179 CLR 403 Beattie v Wesley Mission [2017] NSWCATAP 120 Texts Cited: Cheshire & Fifoot, Law of Contract, 11th Australian edition Category: Principal judgment Parties: In Matter AP 17/19509; Maria Abed (Appellant) Alison May Cosgrove t/as Alison Arts (Respondent)

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