Adam L Robertson Pty Ltd t/as Timber-Tec Flooring & Window Coverings v Leslight

Appearance

1. We note that at the hearing, Mr Robertson, a director of the builder, appeared with leave. He made some short oral submissions, but otherwise relied upon the written summary of argument and grounds of appeal. We provisionally received on the appeal the documents attached to the Notice of Appeal. There was no appearance by the home owners. We attempted to ring them at the telephone number provided on the file. We were informed that they would not be available until the following Monday. We advised the person who answered their telephone that the proceeding was going ahead as listed. We note there was on the file a copy of the Notice of Hearing sent to the parties advising of the time and place of hearing and addressed to the home owners. After the hearing, the home owners wrote to the Tribunal and said they had not received notice of the hearing. As our decision is favourable to them, we do not propose to re-open the hearing.
2. The home owners live at Dunbible in New South Wales. In 2009, they retained the builder to install some timber shutters (shutters) at their residence. They paid the builder $16,250.00 for the installation of those shutters. The home owners complained about the condition of the shutters. The Tribunal below records that there were defects requiring several attempts of rectification, which attempts were unsuccessful. Significantly, before the previous Tribunal, the home owners brought proceedings against the builder, in relation to the shutters, which resulted in the Tribunal making a money order against the builder in the sum of $18,601.00. When the home owners sought to enforce that order of the previous Tribunal, the parties agreed that instead of paying the money order, the builder could rectify the shutter defects. Rectification works did take place, but the home owners again claimed that the shutters were defective. That disagreement about the rectification agreement, made in 2013, was the subject of the proceedings below.
3. In the manner explained in the reasons below, dated 23 June 2015, the Tribunal had before it evidence including the following: 1. Photographs provided by both parties - the builder argued that the photographs were unreliable because they had not been taken recently, however the Tribunal found that the home owners' photos were more reliable in showing the current condition of the shutters. 2. Oral evidence from both Mr Leslight and Mr Robertson. 3. Folders of documents, which contained quotes provided by the home owners to have the shutters replaced, which came to variously $16,804.00 and $18,142.00, and a report by a Mr Nowlan for the builder asserting that the defects which remained in the shutters were minor and could be repaired for the sum of $600.00.
4. The reasoning of the Tribunal member was effectively as follows: 1. He found the home owners' photographs to be "more reliable in showing the condition of the shutters"; 2. He therefore rejected the evidence of Mr Nowlan, which in effect was that the defects were minor; although the Tribunal accepted that complete replacement of the shutters as requested by the home owners was inappropriate because "many of the problems are cosmetic"; and accordingly 3. The Tribunal assessed damages for a loss of value based on inferior quality of the shutters supplied, contrary to s 54 of the Australian Consumer Law, at $8,000.00 bearing in mind the home owners were required to retain the shutters in their current condition. (The Tribunal also rejected a further claim made by the home owners.)

Asserted questions of law

1. The detailed summary of argument which was attached to the builder's Notice of Appeal seeks to delineate between findings of law, where no leave is required, and findings where leave is required. We deal first with the asserted errors of law.
2. It is first asserted that the Tribunal member made findings based on statutory consumer guarantees that only apply after 1 January 2011, but that the shutters were installed in 2009. However, it is clear from the reasons that the Tribunal was basing its adjudication on the novated agreement made in 2013 between the parties, whereby the builder promised to rectify the admittedly defective shutters (bearing in mind that this agreement was in consideration of the home owners not enforcing a money order made by the previous Tribunal requiring payment of a far larger sum than is now under appeal, namely $18,601.00). True it is that in paragraph 7 of the decision by the Tribunal, which was made in June 2015, it does not refer to the role of the Consumer Claims Act in providing jurisdiction to this Tribunal in relation to a 2013 agreement. However, paragraph 7 nevertheless correctly sets out the relevant legal standards imposed by the Australian Consumer Law which applies by operation of the Fair Trading Act
3. While this application was made under the Consumer Claims Act (the relevant Act at the time, but now repealed),and the member has referred to the Fair Trading Act, we are satisfied that the member has applied the correct legal principles in assessing the claim and that he had jurisdiction to do so.
4. Section 13 (3)(a) of the Consumer Claims Act relevantly states: (3) Without limiting subsection (1), when the Tribunal is considering whether or not to make an order or orders under section 8, it is appropriate for the Tribunal to take into account, so far as material to the particular circumstances of the case: (a) any code of practice prescribed under the Fair Trading Act 1987…
5. Section 28 of Fair Trading Act also relevantly states (1) The Australian Consumer Law text, as in force from time to time: (a) applies as a law of this jurisdiction, and (b) as so applying may be referred to as the Australian Consumer Law (NSW), and (c) as so applying is a part of this Act.
6. Accordingly the Consumer Claims Act empowers the Tribunal to consider the relevant parts of the Fair Trading Act and Australian Consumer Law.
7. Despite there being no reference to the Consumer Claims Act, there is thus no demonstrated error of law of the sort asserted by the builder.
8. The second asserted error of law is that it is said that s 54(6) of the Australian Consumer Law is not mentioned in terms in the decision below. That provides that goods do not fail to be of acceptable quality if: 1. The consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and 2. They are damaged by abnormal use.
9. The appellant raised that issue at the hearing. In the reasons below, the Tribunal found that the defects were the responsibility of the contractor. Accordingly, it is implicit that the member did not accept that the goods failed to be of acceptable quality because of some failure by the home owner such as would engage s 54(6).
10. Those are the only asserted errors of law. We do not find that there is any error of law in the circumstances.

Matters requiring leave

1. The remaining matters are those for which leave is required. Because this is an appeal from the Consumer and Commercial Division, Schedule 4 Clause 12 of the Civil and Administrative Tribunal Act 2013 applies. Clause 12(1) states as follows: (1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). Note : Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds.
2. An authoritative decision as to the factors to be applied in considering whether to grant leave was made by a Tribunal, which included the President, in Collins v Urban [2014] NSWCATAP 17 at [84], which stated as follows: 84. The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW PoliceForce [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
3. In short, what is required is establishing to the satisfaction of the Appeal Panel, that there may have been a "substantial miscarriage of justice" because of one of the three subclauses.
4. Here, the new evidence ground is not relied on.
5. The principal grounds concern whether the decision under appeal "was against the weight of evidence". As the decision in Collins v Urban makes clear, it is for the applicant to demonstrate something more than an arguable error in a conclusion arrived at, or where there was a bona fide challenge to an issue of fact. So, for example, in relation to loss and damage, the Tribunal is said to have made a speculative finding about damages. In fact, the Tribunal member had a number of quotes and reports before him. In the manner explained above, he preferred the photographs from the home owners, those photographs being a key reason for dismissing the expert opinion of Mr Nowlan for the builder. Then, having decided that full replacement was not required, the Tribunal needed to assess damages, as it was entitled to, and did rely on the quotes which had been provided by the home owners, and doing the best it could, assessed damages at $8,000.00. There is no difficulty, given the rules of evidence do not apply in the Tribunal, and given how it is exhorted to conduct proceedings: see s 38 of the NCAT Act, in accepting the quotations which are not formal statements of expert evidence in those circumstances.
6. Further, the Tribunal clearly explained why Mr Nowlan's evidence was rejected, and it was open to it to do so. This is no more than a challenge to an issue of fact below.
7. The remainder of the challenges are purely factual ones. They do not amount to a circumstance where there is a miscarriage of justice because the decision was against the weight of evidence. There was in fact, evidence for the findings which were made, the way the Tribunal went about its fact finding was orthodox, and its conclusions were not unreasonably arrived at, nor clearly mistaken.
8. More fundamentally, there is no issue of principle or public importance here, beyond the importance of the matter to the parties in question.
9. In those circumstances, applying the principles set out in Collins v Urban, we decline to grant leave to appeal. We have already found that there are no errors of law established. In the circumstances, the appropriate order is that leave to appeal be refused, and the appeal otherwise be dismissed.
10. The respondent did not appear. It failed to comply with the Tribunal's order that it file submissions. In those circumstances, it is not appropriate that there be any order as to costs.

---

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: 04 November 2015