AJC Portables Pty Ltd v Muras

Background

1. The appellant manufactures and supplies portable buildings of various sizes for people to use as homes or dwellings. In general terms, these portable buildings are manufactured at the appellant's premises after which they are transported to a customer's chosen site. Upon arrival at the site the portable building is installed and connected to various services such as electricity, water and sewerage.
2. On 7 December 2017 the appellant provided a quote to the respondents to manufacture and supply a particular portable building.
3. On 15 December 2017 the respondents paid to the appellant a fully refundable deposit of $500.
4. On 20 December 2017 the appellant sent an email to the first respondent which said: "As discussed, your draft floor plan has been drawn up by our draftsman. Please see attached and advise if you would like any changes. Also, I have attached a number of important documents relating to your portable building purchase. Please review, sign and return to me when convenient (IMPORTANT). When you are ready to go ahead, we require a 30% payment (less your $500 deposit) in order to commence production. This amount is: $33,846.46."
5. There followed a series of communications in which changes to the quoted building were discussed by the parties.
6. Subsequently, the respondents had a discussion with the appellant's salesman, a Mr Terry Hogan. The Tribunal below, in its reasons for decision, summarised the evidence given by the respondents in relation to that discussion as follows: "Before paying the initial deposit the (respondents) advised the (appellant's) salesman, Terry (Hogan), that the dwelling was to be erected in an area that had increased snow and wind loading. They identified the area on a map and advised Terry of the elevation of the area. The (respondents) were told that the (appellant) had built in that area before and that (it) could comply with the additional snow and wind loadings."
7. The site where the portable building was to be installed is near Jindabyne, NSW.
8. On 20 March 2018 the first respondent sent an email to the appellant. In that email the first respondent said: "To double check is this wind rates (sic) and snow rates (sic) as we are very worried about hat (sic) due to be (sic) height of our property and the extreme winds and snow we will get."
9. On the appeal, the appellant submitted that the sentence quoted above was an inquiry by the respondents as to the particular wind and snow ratings (as designed) of the portable building they were interested in purchasing.
10. The respondent submitted that the sentence was an inquiry by them as to whether the portable building they were interested in purchasing was designed to withstand the particular wind and snow ratings for the site where the portable building was intended to be installed.
11. In our opinion the respondents' submission is to be preferred. The words "is this" reads more comfortably as a reference to the particular building on the particular site, and the words "double check" invite an opinion from the appellant (as to whether the portable building will meet the loadings relevant to the site) rather than a statement of fact (as to the designed loadings). The sentence as quoted in essence consists of four typographical errors indicated below in bold. The sentence should read: "To double check, is this (the portable building) wind rated and snow rated as we are very worried about that due to the height of our property and the extreme winds and snow we will get."
12. A few days later the respondents paid the deposit referred to in the email of 20 December 2017.
13. On 2 May 2018 the respondent signed the documents (where a signature was indicated as being required). The documents provided were a tax invoice totalling $124,478.20, a Payment and Delivery Schedule, a document headed "Terms and Conditions", a Customer Contact Details Form and a Floor Plan Authorisation. The site address is expressly recorded in a number of places in those documents.
14. There is no dispute between the parties that these documents, considered collectively, made up the written contract between them and that this written contract was entered into on 2 May 2018 (the "Contract").
15. The Contract expressly excluded the provision of engineering drawings. The tax invoice said: "Exclusions: - Certified Engineered Drawings and Elevations (Available Upon Request @ $550.00)"
16. The respondents subsequently requested engineering drawings.
17. The appellant then retained an engineer who, after being advised of the site address where the portable building was to be installed, provided drawings containing the following note: "NOTE: TRANSPORTABLE CABIN NOT DESIGNED FOR SNOW LOADS. ENSURE THIS CABIN IS PROTECTED FROM SNOW BY MEANS OF A SEPARATE STRUCTURE OR EQUIVALENT."
18. Subsequently, the builder retained by the respondents (to prepare the site, connect the portable building to services and other work) advised them that the portable building described in the plans provided by the appellant did not comply with the regulations for snow and wind loadings applicable in the local government area applicable to the site where the portable building was to be installed. There is no dispute between the parties that this advice was other than correct.
19. The appellant suggested to the respondents that a further structure could be constructed to cover the portable building and which would, presumably, meet the local council's regulations for snow and wind loadings, but this was not acceptable to the respondents.
20. The respondents sought the return of their deposit. The appellant has refused to return the deposit asserting, in substance, that it bears no responsibility for the fact that the portable building does not meet local council regulations for snow and wind loadings applicable to the site where the building was to be located.
21. The respondent commenced proceedings in the Tribunal against the appellant on 8 September 2019.
22. On 19 September 2019 the Tribunal sent to the parties a document headed "Notice of Directions Hearing, Both parties to attend by Telephone" in bold at the top of the page. The document said that the directions hearing would take place on 28 October 2019 by telephone.
23. Toward the bottom of the first page the document said, in bold type: "It is important that you are available on the telephone number provided for at least 30 minutes from the time specified on this notice … " [Underlining ours]
24. In accordance with that Notice the parties appeared at that directions hearing by telephone.
25. On 31 October 2019 the Tribunal emailed to the appellant a Notice of Hearing which notified it that the hearing of the proceedings would take place in person (and not by telephone) on 12 February 2020. On the hearing of the appeal Mr Copley acknowledge receipt of this Notice of Hearing. That document said: The application has been listed before the Tribunal and you are required to appear at: Location: Queanbeyan Court House, 2 Farrer Place, Queanbeyan NSW 2620 Date and Time: Wednesday 12th February 2020 at 9:30 AM (AEDT) Please arrive at least 15 minutes before the start of the hearing. It is important that you are on time as the Tribunal may decide the matter in your absence. The decision made will be binding on you. [Bold type is per the original]
26. The hearing of the proceedings took place on 12 February 2020.
27. At that hearing the respondents appeared but the appellant did not.
28. The Tribunal was satisfied that the appellant had been given notice of the hearing (a finding which was correct) and proceeded to hear the proceedings in the absence of the appellant as it was entitled to do pursuant to r 35 of the Civil and Administrative Tribunal Rules 2014 (NSW).
29. The Tribunal heard the evidence of the respondents and found that they were entitled to a refund of the whole of the deposit paid for the supply of the portable dwelling, namely the sum of $34,071.54.
30. The appellant received a copy of the Tribunal's reasons for decision on 13 February 2020 and lodged it's Notice of Appeal on 2 March 2020.
31. In substance the appellant's grounds of appeal can be summarised as: 1. It was denied procedural fairness in that it did not appear at the hearing because it was not notified that the hearing would take place in person rather than on the telephone. 2. It was denied procedural fairness in that it was not served with the respondents' evidence prior to the hearing (and had therefore not served any evidence of its own because it did not know what the evidence against it was).
32. In compliance with directions made by the Appeal Panel the respondents served on the appellant the evidence they provided to the Tribunal below and on which they intended to rely on the appeal.
33. In response to that evidence the appellant lodged with the Appeal Panel and served on the respondents the evidence upon which it intended to seek leave to rely on the appeal. We received and have considered that evidence because it is relevant to whether a new hearing should be ordered.
34. Mr Copley confirmed on the appeal that that evidence was the evidence that the appellant would give to the Tribunal if there was a new hearing. Not contained in that material was any evidence from Mr Hogan. Mr Copley confirmed that Mr Hogan had left the employ of the appellant and was not available to give evidence. Therefore, the respondents' evidence of their conversations with Mr Hogan are not contradicted by Mr Hogan.
35. Mr Copley further confirmed that the respondents' evidence set out at [9] above, to the effect that the respondents showed Mr Hogan on a map where the portable building would be sited, was something that the appellant's salespersons did as a matter of course.
36. The appellant's grounds of appeal raise two matters of substance: 1. Was it procedurally unfair for the Tribunal to proceed to hear the matter in the absence of the appellant? 2. Would the result have been any different had the appellant appeared at the hearing?

Notice of Hearing

1. On the appeal the appellant submitted that it had agreed to a telephone directions hearing (which was then held on 28 October) and at no stage was the appellant advised that this had changed. The appellant said no-one telephoned the appellant on the telephone number it had earlier provided. The appellant submitted that it emailed the Tribunal on the day of hearing at 9.39 am (the hearing start time was 9.30 am) in which it said: "Also, no one (sic) has called me for the phone hear (sic) that is meant to be taking place at 930 (sic) this morning. Can you please advise what is happening?"
2. The appellant complains that no reply to this email was received until the appellant was sent the Tribunal's decision the following day. Sending an email to the Tribunal on the day of hearing was not likely to produce any constructive result. In our opinion no reasonable person could assume that, in an organisation of the size and complexity of the Civil and Administrative Tribunal, such an email would be brought to the attention of the Member hearing the proceedings before that hearing concluded.
3. The appellant submitted that the Tribunal found in favour of the respondents on no evidence by either party, the respondents "failed on their instructions", the Tribunal had failed to comply with the "regulations they have set" and "in turn, found the matter falsely".
4. We reject these submissions.
5. Mr Copley's assumption that all further hearings would be conducted by telephone had no factual basis in that the Tribunal never said anything to that effect. Further, The Notice of Hearing dated 31 October 2019, a Notice Mr Copley acknowledged receiving, clearly stated that the hearing would be in person.
6. The appellant is also incorrect regarding the Tribunal's regulations and the submission that the Tribunal did not follow them.
7. Rule 35 of the Civil and Administrative Tribunal Rules 2014 (NSW) (the "NCAT Rules") says: 35 Ex parte proceedings in Consumer and Commercial Division (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Where a hearing is held for proceedings to which this rule applies, the Tribunal may proceed to hear the proceedings in the absence of a party who has failed to attend the hearing if - (a) the Tribunal is satisfied that notice of the hearing was duly served on the party, or (b) the Tribunal, being satisfied that service of notice of the hearing on the party has been duly attempted or having given directions under rule 15 to bring it to the notice of the party, considers that justice requires that the matter be dealt with in the absence of the party.
8. That rule says that the Tribunal was entitled to proceed with the hearing in the absence of the appellant if it was satisfied notice of the hearing had been duly served on the appellant (which it had) and that justice required the matter to be dealt with (which the Tribunal found was the case).
9. A notice is "duly served" if it is sent to the party's address for service [rule 13(2)(b)(i) of the NCAT Rules] which this Notice had been. We note that that address on that Notice is the same address for service nominated by the appellant on its Notice of Appeal.
10. Therefore, the Tribunal had not failed to comply with its "regulations" as submitted by the appellant.
11. The appellant complains that no-one from the Tribunal telephoned it on the day of the hearing. It was not required to do so. Rule 35 does not require the Tribunal to take positive steps to ensure that the party is notified of the hearing, nor does it require the Tribunal to make enquiries to ascertain whether it is appropriate to proceed in the party's absence - Souleles v Todd [2016] NSWCA 91 per Beazley P and McColl JA at [29].
12. The appellant had been notified of the hearing date, the Notice said that the hearing was in person, and the appellant had received that Notice. The Tribunal determined that justice required that the matter be dealt with in the absence of the appellant, a conclusion which was open on the material before it.
13. Accordingly, the requirements of r 35 were satisfied and there was no room for reliance on s 38 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "NCAT Act") which requires the Tribunal to take such measures as are reasonably practicable to ensure the parties have a reasonable opportunity to be heard and have their submissions considered - see Souleles at [36].
14. It is to be kept in mind that in this case we are dealing with an appeal rather than an application to set aside the Tribunal's decision pursuant to reg 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW). It is almost invariably the case that error by the Tribunal must be demonstrated on an appeal for the appeal to be successful. At the end of the day, in this case, the Tribunal's rules were followed, and the relevant conditions met, and thus there was no error in the Tribunal proceeding to hear the matter in the absence of the appellant. Such was made clear by the Court of Appeal in Souleles.
15. We reject the submission that the Tribunal found in favour of the respondents in the absence of evidence from anybody. The respondents gave evidence to the Tribunal and that evidence is summarised in the Tribunal's reasons for decision.
16. It follows that we reject the submission that the respondents "failed on their instructions" and reject the submission that the Tribunal found the matter falsely".
17. The appellant complains on the appeal that it had not been served with the respondents' evidence prior to the hearing of 12 February 2020, and it had earlier objected to the respondents being granted an extension of time to serve such evidence.
18. The appellant did object to the grant of an extension of time, but there was no error in the Tribunal granting that extension. Extensions of time are frequently granted on the first occasion they are requested. Such extensions are given to comply with the statutory obligation of the Tribunal to ensure that parties have a reasonable opportunity to be heard and have their submissions considered in the proceedings - s 38(5)(c) of the NCAT Act.
19. It may be correct that the respondents' evidence had not been served on the appellant prior to the hearing, but that is no reason for the appellant not to appear at the hearing. Had the appellant appeared at the hearing and been in any way prejudiced by the respondents' failure to serve their evidence before that date then it was inevitable that the appellant would have been granted an adjournment if that is what it wanted in order to overcome any prejudice, or the Tribunal would have refused to allow the respondents to lead the evidence which had not been previously served. Either way, the appellant would not have been put in a position of disadvantage.
20. Parties to proceedings in the Tribunal have a positive duty to participate in the Tribunal's processes. Section 36(3) of the NCAT Act obliges parties to the proceedings to co-operate with the Tribunal to give effect to the Tribunal's guiding principle (being to facilitate the just, quick and cheap resolution of the real issues in the proceedings - s 36 of the NCAT Act) and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal.
21. In the circumstances of this case the making of the assumption that the hearing would be conducted by telephone in the absence of any factual basis for that assumption amounted to a failure by the appellant to co-operate with the Tribunal (by reading the Notice of Hearing) to facilitate the just, quick and cheap resolution of the real issues in the proceedings and to participate (as a matter of substance) in the processes of the Tribunal.
22. In our opinion there was no procedural unfairness in the Tribunal below proceeding as it did.
23. That finding is dispositive of the appeal. But against the event that we might be wrong in that finding, and there had been procedural unfairness, we would not have ordered a new trial because the appellant was bound to fail at any new trial. We shall briefly set out our reasons for that finding.

No Different Result

1. Where procedural unfairness is alleged an appellant must demonstrate that, had the procedural unfairness not occurred, there was a possibility of a different result. That is, in this case, had the appellant appeared and given the Tribunal the evidence it desired to give, there was a possibility of a different result.
2. In Stead v State Government Insurance Commission [1986] HCA 54; [1986] 161 CLR 141 the High Court said at p.145: "Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial."
3. In our opinion it would be futile to order a new hearing in this case because there was no possibility of a different result. That is because, even on the appellant's own evidence, it breached provisions of the Australian Consumer Law NSW (the "ACL NSW") the result of which means, in this case, that the respondents are entitled to a refund of the monies they have paid to the appellant.
4. The ACL NSW contains a number of consumer guarantees. The two consumer guarantees relevant to this case are those set out in s 54 and s 55. We shall consider them separately and in that order.
5. Section 54 says: 54 Guarantee as to acceptable quality (1) If: (a) a person supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are of acceptable quality. (2) Goods are of acceptable quality if they are as: (a) fit for all the purposes for which goods of that kind are commonly supplied; and (b) acceptable in appearance and finish; and (c) free from defects; and (d) safe; and (e) durable; as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3). (3) The matters for the purposes of subsection (2) are: (a) the nature of the goods; and (b) the price of the goods (if relevant); and (c) any statements made about the goods on any packaging or label on the goods; and (d) any representation made about the goods by the supplier or manufacturer of the goods; and (e) any other relevant circumstances relating to the supply of the goods. (4) If: (a) goods supplied to a consumer are not of acceptable quality; and (b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer's attention before the consumer agreed to the supply; the goods are taken to be of acceptable quality. (5) If: (a) goods are displayed for sale or hire; and (b) the goods would not be of acceptable quality if they were supplied to a consumer; the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer's attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent. (6) Goods do not fail to be of acceptable quality if: (a) 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 (b) they are damaged by abnormal use. (7) Goods do not fail to be of acceptable quality if: (a) the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and (b) the examination ought reasonably to have revealed that the goods were not of acceptable quality.
6. Section 54(1) is satisfied because there is no dispute that the appellant agreed to supply the portable building in trade or commerce. There is no doubt that the respondents were consumers (as defined in s 3 of the ACL NSW) because the portable building was of a kind ordinarily acquired for personal, domestic or household use or consumption because it was to be used as a dwelling. Therefore, the Contract contained a guarantee that the portable building was to be of acceptable quality.
7. The next question is whether the portable building was of acceptable quality taking into account the matters set out in sub-s (3). In our opinion it was not.
8. The nature of the portable building was that it would be fit and safe for human habitation. It is notorious that such buildings are subject to various regulations governing structural strength and the ability to withstand various weather conditions. Those regulations vary depending on location as weather conditions vary depending on location. Such buildings are required by those regulations to be safe and durable according to the standards set out in those regulations.
9. The appellant knew of the location where this portable building was to be sited, and that the site was prone to higher wind and snow loading conditions than elsewhere, because the respondents told those things to Mr Hogan, and there is no evidence that Mr Hogan disputes that version of the conversation.
10. Mr Hogan even went so far as to say that the appellant had built in that area before and that it could comply with the additional snow and wind loadings (applicable to that area).
11. Even if Mr Hogan did dispute the conversation, the appellant has in its material the email of 20 March 2017 in which the respondents expressly raised the question of snow and wind loadings, to "double check" whether the portable building was wind and snow rated (for the site) as they were very worried about those matters due to the height of their property and the extreme winds and snow they expected to get. The appellant knew of the location of the site because the site address was expressly stated in the Contract.
12. The final matter we consider relevant is that the appellant had engineers available to it to consult if it desired. This is what happened after the respondents paid for engineering drawings and is when Mr Copley says that the appellant discovered its portable building would not meet the local wind and snow ratings for the site.
13. Taking all of those circumstances into consideration, it is our opinion that the reasonable consumer, fully acquainted with the state and condition of the portable building, would not regard it as being of acceptable quality having regard to the matters we have set out at [70]-[74] above.
14. The inability of the portable building to meet the local wind and snow loading regulations were not drawn to the respondents' attention per sub-s (4) of s 54, nor was that fact displayed in a written notice as referred to in sub-s (5).
15. The respondents did not cause the portable building to become of unacceptable quality, nor did they fail to take reasonable steps to prevent it from becoming of unacceptable quality. It was of unacceptable quality (in the circumstances of this case) from the very beginning. Nor was the portable building subject to abnormal use. Therefore, sub-s (6) does not apply.
16. Sub-s (7) does not apply because it could not sensibly be suggested that a consumer, inspecting a sample portable building, would have recognised that it would not meet the wind and snow loading regulations applicable to the Jindabyne area.
17. For all of those reasons, s 55 would apply and the appellant breached that guarantee of acceptable quality in the circumstances of this case.
18. It is also our opinion that the appellant was in breach of the guarantee provided by s 55 of the ACL.
19. Section 55 says: 55 Guarantee as to fitness for any disclosed purpose etc. (1) If: (a) a person (the supplier) supplies, in trade or commerce, goods to a consumer; and (b) the supply does not occur by way of sale by auction; there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit. (2) A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that: (a) the consumer makes known, expressly or by implication, to: (i) the supplier; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or (b) the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii). (3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be.
20. The uncontested evidence of the respondents is that they disclosed to Mr Hogan the particular purpose for which the portable building was required, namely as a dwelling sited at a particular place near Jindabyne. Alternatively, that purpose was disclosed in the Contract.
21. There is no evidence that the respondents did not rely on the skill and judgment of the appellant, nor any reason to find that it would have been unreasonable for a consumer to do so in the circumstances of this case.
22. As a result, there was a guarantee that the portable building was reasonably fit for the purpose of a dwelling at the chosen site.
23. The test is an objective test of reasonable fitness - Merck Sharp & Dohme (Australia) Pty Ltd v Peterson [2011] FCAFC 128; (2011) 196 FCR 145 at [174] and the time at which that fitness is to be judged is at the time the goods are (or are to be) supplied to the consumer - Merck at [180].
24. In either case, whether for breach of s 54 or for breach of s 55, in our opinion the failure of the portable building to meet local wind and snow loading regulations is a "major failure" within the meaning of s 260 of the ACL, in that the portable building would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure to comply with those regulations, the portable building departed in significant respects from the description (provided by Mr Hogan and to the effect that the portable building would meet those regulations) and the portable building could not, easily and within a reasonable time, be remedied to make it fit for the disclosed purpose. Further, the portable building would be unsafe for habitation if installed on the site chosen because it would be at risk of collapse due to wind and snow loadings which occur in that area.
25. The appellant argues that the solution is to erect a further structure over the top of the portable building, but this would not, in our opinion, meet the description of remedying the failure of the portable building to meet local regulations, and there is no evidence the local council would be likely to approve it.
26. It follows that the respondents would have been entitled to reject the portable building pursuant to s 259(3) of the ACL (see generally Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [77]-[82]) and they have clearly done so and have notified the appellant of the reasons for doing so.
27. Therefore, pursuant to s 263(4) of the ACL the appellant would have been required to refund to the respondents all the monies paid by them to it for the portable building, which amounts to $34,071.54 - see Lam at [101].
28. The Tribunal has jurisdiction to grant that relief provided the jurisdictional requirements of the Fair Trading Act 1987 (NSW) (the "FTA") are satisfied - see Lam at [171].
29. In this case those requirements are satisfied. The respondents are clearly consumers, the portable building is "goods" and the appellant is a supplier within the definition of those terms provided in s 79D of the FTA.
30. The appellant agreed to supply the portable building and so there was a "supply" within the meaning of that term in s 79G of the FTA.
31. "Supply" includes, in relation to goods, supply by way of sale (s 2 of the ACL NSW), and a reference to the supply of goods in the ACL NSW includes a reference to agreeing to supply goods (s 11 of the ACL). Therefore, the agreement to sell the portable building to the respondents was a "supply of goods" for the purposes of the ACL NSW.
32. The respondents claim for return of the deposit is a claim for a specified sum of money within the meaning of that term in s 79E of the FTA and so their claim is a "consumer claim".
33. The Tribunal has jurisdiction to hear and determine a "consumer claim" if the contract to which the claim relates contemplated that the portable building would be supplied in New South Wales or the Contract was made in NSW - see s 79K of the FTA. In this case both those conditions are satisfied.
34. Section 79L of the FTA says that the Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply: 1. the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim was lodged, or 2. the portable building was supplied to the respondents more than 10 years before the date on which the claim was lodged.
35. The portable building has never been supplied and so the second condition is irrelevant.
36. The respondents' claim was lodged with the Tribunal on 8 September 2019, and on any view their cause of action accrued within three years prior to that date, that is, after 9 September 2016. It follows that neither of the two matters set out in s 79L are satisfied.
37. Accordingly, in our opinion the Tribunal had jurisdiction to hear and determine the respondents' claim against the appellant for breach of the consumer guarantees to which we have referred.

Conclusions

1. We are not persuaded that there was any procedural unfairness in the Tribunal proceeding to hear the matter in the absence of the appellant.
2. Further, even if we had been persuaded that there was some unfairness in the hearing proceeding in the absence of the appellant, we are of the opinion that an order for a new hearing would not have been ordered because it would have been futile. On the appellant's evidence, had that evidence been given at a hearing, the same decision would have been made.
3. It follows that this appeal must be dismissed.

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: 22 July 2020