CONSUMER LAW — Jurisdiction — NSW Civil and Administrative
Tribunal Consumer and Commercial Division — Supply of
Services -
Jurisdiction and powers CONTRACT– contract provided for
Source
Original judgment source is linked above.
Catchwords
CONSUMER LAW — Jurisdiction — NSW Civil and AdministrativeTribunal Consumer and Commercial Division — Supply ofServices -Jurisdiction and powers CONTRACT– contract provided forpayment to be postponed until given event - contract terminated when partlyperformed but beforepayment due - whether payment for performance accrued and
Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62
[26]
Everingham Solomons Solicitors (First and Second Appellant)
[27]
Ashwood Park Equestrian Pty Ltd (Ashwood Park) and Sheridan Ashwood (Ms Ashwood) (collectively 'the appellants') have appealed against a decision made in the Consumer and Commercial Division of the Tribunal, on 3 December 2024, allowing a claim made against them by Lesa Medlock (Ms Medlock) as against Ms Ashwood, and dismissing Ashwood Park's cross-claim against her.
Both claims related to an agreement for the agistment, care, training and sale Ms Medlock's horse (Valentine) by Ms Ashwood in return for fees, expenses and a significant sales commission, if Valentine was sold. Ms Medlock was seeking orders that she did not have to pay the appellants money they had demanded of her, and for the return of Valentine to her. Ashwood Park sought orders that Ms Medlock's claim be dismissed and that she pay them $48,221.28 said to be owing to in fees and charges. The cross-claim did not state what should happen to Valentine but asserted that the appellants held a lien over the horse to secure payment due to them.
Those claims were heard in the Consumer and Commercial Division over two days in October and November 2024. Ms Ashwood represented herself and Ashwood Park, of which she is a director, with Ms Medlow being self-represented. At the conclusion of the hearing the Tribunal reserved its decision. On 3 December 2024 the Tribunal published written reasons for decision (the decision) and made the following orders.
[28]
"1 The 2nd respondent [Ms Ashwood] is to return the horse "Valentine" to the applicant immediately at the end of the two days notice in order 2..
2 The applicants are to arrange the carriage by independent third party horse carrier at the applicant's cost from the 2nd respondent's business premises on the giving of two days written notice by email to the 2nd respondent..
3 The application against the 1st respondent is dismissed.
4 The cross application by the first respondent is dismissed as it was not a party to the contract with the applicant.
5 The cross claim by the second respondent is dismissed and the Tribunal declares that the second respondent is not entitled to maintain a lien over the horse 'Valentine'
6 The Tribunal declares that the applicant is not indebted to the 2nd respondent in the amount claimed by the 2nd respondent or at all.."
[29]
On 20 December 2024 the appellants filed a notice of appeal against all of the Tribunal's orders. That notice of appeal was filed within the time required by r 25 of the Civil and Administrative Tribunal Rules2014 (NSW) (the NCAT Rules).
The appeal was listed for hearing before us on 27 May 2025. The appellants were represented by Mr Dean, Solicitor, by leave, while Ms Medlock represented herself.
(a) in the case of an interlocutory decision of the Tribunal at first instance - with the leave of the Appeal Panel, and
(b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance - as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
[32]
A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also in taking into account an irrelevant consideration or not having regard to a relevant consideration. This includes not making a finding on a central issue that is required to be made out in order to claim an entitlement to relief: see CEO of Customs v AMI Toyota Ltd[2000] FCA 1343; (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia[1995] HCA 58; (1995) 184 CLR 163 at 179; [1995] HCA 58.
An appellant to an internal appeal brought under s 80(2)(b) of the NCAT Act must identify with precision a question of law said to be raised by the appeal: Ferella & Anor v Chief Commissioner of State Revenue[2014] NSWCA 378 at [6], [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd[2017] NSWCA 223 at [13].
Whether a question is one of law must be approached as a matter of substance: Haritos v Federal Commissioner of Taxation ; at (6), [94], [203]; at . In ; () at [109], Bathurst CJ and Bell P (as the Chief Justice then was) said, with Garling, Johnson and Lonergan JJ agreeing:
[33]
"Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law.' They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts."
[34]
In Unique Commercial Group Pty Ltd v Cusumano[2024] NSWCATAP 204 at [24]- [40], the Appeal Panel set out the principles concerning questions of law within s 80 of the NCAT Act. An appellant is required to identify a pure question of law which then becomes the subject matter of the appeal: Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Paramatta Trust[2020] NSWCA 62 at [4] and [11]; Orr v Hunter Quarries Pty Ltd[2022] NSWCCA 39 at [12], [14]; Cobar.
Examples of pure questions of law include:
[35]
(1) Denial of procedural fairness (Prendergast v Western Murray Irrigation Ltd[2014] NSWCATAP 69 at [13](4)) (Prendergast); FVA v Commissioner for Police, NSW Police Force[2024] NSWCATAP 127 at [83]- [84]). A breach of procedural fairness will constitute jurisdictional error, if the error is material to the Tribunal's decision: Nathanson v Minister for Home Affairs(2022) 276 CLR 80; [2022] HCA 26 (Nathanson) at [1], [33] (Kiefel CJ, Keane and Gleeson JJ).
(2) A constructive failure to exercise jurisdiction, which includes the failure to consider and address a material issue raised by a party in the proceedings that is within the jurisdiction of the Tribunal to determine (at [8]-[12] and [413]). This category of error also includes a failure by the Tribunal to engage with a clearly articulated argument put to it.
(3) The construction of a statute or contract arrived at by the Tribunal at first instance was wrong in some identified way.
(4) Acting on the application of the wrong legal principle which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd[2014] NSWSC 734 at [38]- ).
[36]
The circumstances in which the Appeal Panel may grant leave to appeal from a decision made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Sch 4 of the NCAT Act.
The principles governing an application for leave to appeal under the NCAT Act are well established and repeated in many decisions of the Appeal Panel, often quoting Collins v Urban[2014] NSWCATAP 17 (Collins v Urban). The Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice because:
[37]
(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).
[38]
In Collins v Urban, the Appeal Panel stated at [76], that a substantial miscarriage of justice for the purposes of cl 12(1) of Sch 4 of the NCAT Act may have been suffered where:
[39]
"... there 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."
[40]
Even if an appellant from a decision of the Consumer and Commercial Division requiring leave to appeal has satisfied the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act. The appellant must demonstrate something more than the Tribunal was arguably wrong: Pholi v Wearne[2014] NSWCATAP 78 at [32].
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:
[41]
(1) Issues of principles;
(2) Questions of public importance or matters of administration or policy which might have general application;
(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.
[42]
In respect of a self-represented, non-legally trained appellant, grounds of appeal should be considered generally (subject to procedural fairness considerations) to determine whether a question of law has been raised: Prendergast at [12]; Cominos v Di Rico[2016] NSWCATAP 5 at [13].
[43]
The decision commenced by outlining the claims made by the parties. The Tribunal classified the cross-application as one made by the appellants under s 79O of the Fair Trading Act 1987 (NSW) (the FTA): see [7]. The Tribunal, at [13]-[15], noted that there was also before it an interim application for miscellaneous matters filed on 5 August 2024 by Ms Medlock seeking the urgent return of the horse. This application was dismissed by the Tribunal because it was not satisfied that Valentine was at risk. The decision with respect to the interim application has not been appealed.
At [17] - [19] of the decision the Tribunal found it had jurisdiction to hear and determine Ms Medlock's consumer claim under the FTA.
The Tribunal did not separately consider whether it had jurisdiction to entertain the cross-application made by the appellants. As raised by us and discussed with the appellant's representative during the appeal hearing the Tribunal did not have jurisdiction to hear the cross-application. This is so because, in the circumstances, Ashwood Park (and Ms Ashwood) had supplied the services in question, and therefore was not be a consumer as defined in s 79D of the FTA. Neither of the appellants could bring their claims against Ms Medlock as a consumer claim within the meaning of s 79E. The goods or services in issue must be supplied to a consumer in order for the consumer to bring a consumer claim in the Tribunal. The person making the supply is not a consumer.
In saying that we recognise that this is a legal distinction which makes no difference to the practical resolution of the dispute from the parties perspective. The Tribunal had the power to make or not to make an order for the payment of money by Ms Medlock to Ms Ashwood (see s 79N(a) and and (b), and to order the return of Valentine based on a finding that there was no lien. It had the power to declare that a specified amount of money was not due or owing by Ms Medlock to Ms Ashwood , but did not have the power to declare that Ms Ashwood was not entitled to maintain a lien over Valentine.
[44]
20. The applicant is the owner of the horse. It had been purchased for $6,500.00 on 19 June 2019 from a third party.
21. It was not in dispute that discussions were first had between the applicant and the 2nd respondent on 31 August 2023 about the horse. On or about 21 September 2023 there were further discussions between the same parties and on that date the horse was delivered to a rural property at Lambs Valley, Hunter Valley to either the 1st or 2nd respondent.
22. The horse was later relocated to Bective, near Tamworth about 22 February 2023, where it remains in the possession of the respondent.
23. An undated invoice number 0001 was issued to the applicant only "Lisa" prior to 28 October 2022 in the sum of $1280.00 incl GST. That invoice had a headnote of "Ashwood Park Equestrian" and "Sheridyn Ashwood". It had an ABN of 90988343503 which is that of the Trustee for Ashwood Park Equestrian Trust. That Trustee is the 1st respondent.
24. That invoice was paid by the applicant online on 28 October 2022.
25. A further undated invoice number 0002 was issued to the applicant only "Lisa" prior to 28 October 2022 in the sum of $2640.00 incl GST. That invoice had a headnote of "Ashwood Park Equestrian" and "Sheridyn Ashwood". It had an ABN of 90988343503 which is that of the Trustee for Ashwood Park Equestrian Trust.
26. That invoice was paid by the applicant online on 13 November 2022.
27. The parties held their first in-person meeting on 8 May 2023 where further agreement was reached as to costs being paid from sale proceeds.
28. By Solicitor's letter dated 11 December 2023 the applicant withdrew the authority of the respondent to sell the horse.
29. No notice was ever issued by the respondent under the Uncollected Goods Act.
[45]
The Tribunal then identified, at [30], the issues that needed to be determined. These were:
[46]
a. Who were the contracting parties
b. What were the terms of the agreement and were they written, oral or implied.
c. What of the terms of the agreement were performed
d. Is the applicant entitled to an order returning the horse.
e. Is there an entitlement of the respondent(s) to payment (if any) and any right to maintain the lien.
[47]
At [31] to [37] the Tribunal summarised Ms Medlock's case. She alleged that she had originally agreed to place Valentine in Ms Ashwood's care for the purpose of Ms Ashwood selling him. This occurred around 31 August 2022 by text and phone discussions between them. The reasons for decision incorrectly say this occurred in 2023, but we think this a typographical error. At [32], the Tribunal noted that Ms Medlock asserted that:
[48]
a. the respondent was to sell the horse as soon as possible;
b. training/education was not required under the contract;
c. there was no reserve price stipulated;
d. the written terms and conditions relied on by the respondent were never part of the negotiations or contract;
e. there was later agreement on 8 May 2023 that the respondent would take her costs from the sale of the horse;
f. the respondent on 8 May 2023 estimated the sale price at $100,000.00 in 12 months;
g. As at 8 May 2023 the respondent wished to keep the horse for 12 months to work it up to the $100,000.00 value; and
h. The services had not been delivered.
[49]
The Tribunal, at [32], noted that Ms Medlock had not provided her evidence in chief in writing, and that her bundle of documents contained numerous text messages, which it found to be of little assistance. The Tribunal rejected a witness statement, upon which Ms Medlock sought to rely, as the witness was not available for cross-examination: see [36]. The Tribunal said, at [37], that Ms Medlock had produced a document suggesting that the "share-paddock agistment rate should be $40.00 per week."
At [38] to [43] the Tribunal summarised Ashwood Park's case. It was noted, at [38], that Ms Ashwood
[50]
... did not wish to make any oral submission or give a definite answer as to the Tribunal's question as to which of the respondents was the contracting party of the two respondents.
[51]
The Tribunal found at [39] that there was no evidence that Ms Ashwood disclosed, during their contractual negotiations, that there was any entity involved, on her side, other than Ms Ashwood as an individual. The first two invoices given to Ms Medlock did not indicate that Ashwood Park was the contracting party.
As a consequence the Tribunal found, at [43], that Ashwood Park was not a party to the contract with Ms Medlock and that Ms Ashwood was. The claim against Ashwood Park was consequently dismissed. It should not have been heard as Ashwood Parks cross-application due to an absence of jurisdiction, although the Tribunal had power to deal with the issues raised when considering Ms Medlock's consumer claim.
The Tribunal then embarked on a consideration of the remaining claims. At [52] the Tribunal found:
[52]
52. The parties agree that there was a contract between them in respect of a horse that originally cost the applicant $6,500.00 three years earlier. They agree that the contract was for the purpose of sale of the horse. The evidence, including the applicant's witness Mr Medlock's own sworn evidence, clearly establishes that the contract was also for the education of the horse. By implied term the agreement also required the spelling agistment and care of the horse.
[53]
With respect to Ms Medlock's case, the Tribunal found that:
[54]
(1) Ms Medlock entered into "the contract" without knowing Ms Ashwood's "charge rates" and with no end date to the contract agreed: see [53].
(2) Ms Medlock then accepted Ms Ashwood's "charge rates" by paying them. She then experience financial difficulty and made no further payment: see [54].
(3) The contract was renegotiated at a meeting between the parties on 8 May 2023. Ms Ashwood agreed to take her outstanding fees from the proceeds of sale, once Valentine was sold; see [56] and [57]. The Tribunal rejected the suggestion, from Mr Medlock, that Ms Ashwood agreed to keep the horse for a further 12 months in order to achieve a sale price of $100,000. It thought such a proposition "highly unlikely" given the financial pressures she was under at the time: which were detailed later in the decision at [69]-[70]. Indeed, the Tribunal found that Mr Medlock "was not an accurate witness": at [59].
[55]
With respect to Ms Ashwood's case, the Tribunal:
[56]
(1) Rejected her contention that Ashwood Park's standard written terms and conditions of contract formed part of the contract. There was no evidence that this was the case: see [61].
(2) Found that, "there was not one piece of evidence in the form of a training log book, nutrition record, shoeing and hoof care records, health care including vaccinations, worming or therapeutic records, dentistry, or weight records" which demonstrated that Ms Ashwood had provided "education/training of the horse," which formed a large part of the $50,000 she was claiming: see[63] - [66].
(3) Rejected the evidence of two of Ms Ashwood's associates with respect to training given to Valentine, in the light of their close association with Ms Ashwood and the complete absence of training records: see [60].
(4) Found that there was no evidence corroborating Ms Ashwood's claim that she had sent Ms Medlock any but the first three of the eighteen invoices she relied on, the last fifteen of which Ms Medlock denied receiving: see [65].
(5) Due to Ms Ashwood having to leave the Lambs Valley property on 2 December 2022 (and being involved in Supreme Court litigation relating to it) the horses in her care were on placed on bare agistment elsewhere, which the Tribunal found, "would have cost the respondent in the order of $40.00 per week, and not the "spelling" of the horse with associated care and feeding which is the rate that the respondent did charge for this period at $175.00 per week:" see [70] - [73].
(6) In the period covered by third invoice, which included November 2022, Ms Ashwood involvement in litigation would have prevented her conducting any equestrian horse training. Nonetheless she had charged for it.
[57]
The Tribunal then set out its findings, which repeated many it had already made. The new findings included that:
[58]
79. The terms of the agreement were both written, oral, and implied. They were written as to the text messages between the parties from 29 September 2022 to 4 October 2022.
80. They were oral as to the phone discussions during the same period and as later amended on 8 May 2023 at the first face to face meeting between the parties about the account.
81. They were implied as to the requirement to maintain the horse during its education and that the applicant would pay the respondent's fees in return for the services provided, if provided.
82. The essential terms of the agreement were:
a. The 2nd respondent would take the horse on a bailment for education and training and for sale (the services) for an unspecified term;
b. The horse was to be sold at the earliest opportunity;
c. It was later on 4 October 2022 agreed that the respondent's commission rate would be 10%;
d. The applicant would pay the respondent's fees for the education and commission on the sale;
e. On 8 May 2023 it was agreed the fees would be paid from the sale proceeds; and
f. The respondent would provide the services.
83. There was no reserve price for the sale stipulated and initially no fee rate set. The applicant later agreed to the rate given in the first and second invoices by paying those invoices without objection. The applicant raises no issue as to refund of those invoices.
[59]
87. Particularly based on the complete lack of any business records as to the horse's education and care, I find that from the end of the second invoice period there is insufficient evidence to show that the respondent delivered any of the agreed services in respect of the horse to the applicant.
88. The essential performance criteria by the respondent was firstly a sale. This did not occur and the respondent never sought clear instructions as to a reserve price and all sale efforts, of which there appears to have been little, ceased in early 2023. No question of entitlement to commission arises.
89. Secondly the education of the horse. An essential term was to deliver education. The respondent has not proven to the civil standard of proof that it was delivered, and therefore has no entitlement to a lien for her alleged costs. There has been a complete failure of consideration by the respondent.
90. The applicant is therefore entitled to the return of the horse and the respondent's claim is dismissed.
[60]
The notice of appeal and appellants' submissions.
[61]
The appellants are legally represented. The notice of appeal does not raise any questions of law but seeks leave to appeal on each of the three grounds specified in cl 12 of sch 4 of the NCAT Act. The grounds for seeking leave are not separately identified or numbered but can be extracted from the notice of appeal and submissions in support. These are considered below.
[62]
The new evidence on which the appellants seek to rely consists of evidence:
[63]
(1) going to the issue to the training and education of Valentine (p.186 to 236 of the Appellants Bundle (AB)); and
(2) of disbursements.
[64]
To be given leave to appeal based on new evidence, it must be evidence that was not reasonably available at the time the proceedings under appeal were being dealt with at hearing. Whether evidence was "not reasonably available" at the time of the hearing is not considered by reference to any subjective explanation from the party seeking leave to rely on it: but, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained it: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown[2015] NSWCATAP 111 at [23].
In this case all of the new evidence relied on by the appellants was either available to or could have been reasonably obtained by them and relied on at the original hearing.
An appeal is not an opportunity for a losing party to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd[2017] NSWCATAP 39 at [10]. This is clearly what the appellants in the case are attempting to do on appeal, relying on evidence that was available, but not produced, at the time of hearing to remedy defects in their original case found and commented on by the Tribunal in its decision. Absent unusual circumstances, such as evidence proving that a decision was obtained by fraud (Meek v Fleming[1961] 3 All ER 148 at 154, Prestige Auto Centre Pty Ltd v Apurva Mishra[2014] NSWCATAP 81 at [23]), which do not exist here, appeals are not a vehicle for having a second go at presenting a failed case.
[65]
Was the decision against the weight of the evidence and not fair and equitable?
[66]
In seeking leave to appeal the appellants allege that they have suffered a substantial miscarriage of justice as the decision was against the weight of the evidence and was not fair and equitable because:
[67]
(1) "the decision involved having to return the horse over which she plainly had a common law lien for debts owing to her";
(2) "the Tribunal completely overlooked the fact that [Ms Ashwood] was entitled to simple agistment fees for the period from 31 October 2022 to 3 December 2024" which were said to total $4,460.00; and,
(3) "that debt was sufficient to have disentitled [Ms Medlock] to the return of her horse."
[68]
The appellant's submissions advance a number of broad propositions going to the manner in which the Tribunal considered the evidence and reached its decision, without identifying which leave grounds those complaints relate to.
First, the appellants said that the Tribunal's refusal to accept invoices from the appellants, in which the costs of disbursements relating to farrier's and vet fees were claimed, was wrong. The Tribunal did so in the absence of invoices from those providers, or other evidence that the work for which the disbursement were claimed was actually done. The appellants submitted -
[69]
"... an unpaid invoice is typically considered a legally binding debt. It was sufficient to produce only the invoices and not the invoices of the farrier and the vet especially since there was no evidence that Lisa Medlock ever requested substantiation of the amounts claimed."
[70]
While an unpaid invoice that forms part of the records of a business is admissible as a business record in the Tribunal, and in the Courts under the provisions of the Evidence Act 1995 (NSW), the invoice is not itself "a legally binding debt", but can be accepted as evidence of its content. The weight to be given to that evidence is not always persuasive, especially in circumstances where, as here, the debt evidenced by the invoice is disputed. Here, Ms Medlock was seeking an order that she did not have to pay the amount claimed by the appellants. The correctness of the amounts claimed were a live issue before the Tribunal. The appellants were on notice of this. Moreover, the Tribunal found that all but the first three invoices had not been given to Ms Medlock. In those circumstances it was clearly open to the Tribunal to look behind the invoices and determine what services had actually been supplied to Ms Medlock in the care, training and education of Valentine. For the relevant period, from November 2022 onwards, the Tribunal found, for cogent reasons, that the only service provided for Valentine was bare agistment. In those circumstances, it was open to the Tribunal to prefer those conclusions about the services actually provided, to those claimed in the invoices.
We reject the contention that the conclusions reached by the Tribunal in this regard were against the weight of the evidence or resulted in the decision not being fair and equitable.
Secondly, it was submitted for the appellants that, "The Tribunal should also not have questioned whether [Ms Medlock] received additional invoices beyond 1 and 2. Rather, it should have inferred it was likely that that the Appellant did in fact provide all further invoices", given that she knew that Valentine was receiving training and education and had increased in value.
That submission is illogical. Assuming for the purposes of argument that Ms Medlock was aware of those matters, they do not justify drawing an inference that she was given and received each of the invoices in issue? There is no reasonable basis for such an inference to be drawn.
In any case, the evidence before the Tribunal was considerably different to that assumption. The parties were at odds as to whether the invoices had been given to Ms Medlock. The invoices in issue related to the period from November 2022, when the Tribunal found the only service being supplied was bare agistment. Around that time Ms Ashwood was subject to significant pressures, being involved in complex litigation about having to leave the property where she lived and the horses were kept. Alternate arrangements had to be made for their care.
[71]
"60. As to the evidence of Ms Greer and Ms Castle in the respondent's bundle, both of these witnesses are close associates of the respondent. Ms Castle is an employee. She describes that the horse was in training 5 days a week except for 4-5 weeks at Christmas. This conflicts with the respondent's own invoices which show regular and extensive spelling times. Given the relationships of these witnesses to the respondent, and when viewed against the complete lack of training and maintenance/care records, I give no weight to these statements. Further, as described above the respondent did not take the Tribunal to those witness statements in reliance on them."
[72]
The appellant's submit that, "The Tribunal should have accepted the statement of Ms Castle" but does not say why it should have done so, given that she was not in attendance at the hearing. The submissions do not explain why the Tribunal's failure to accept and give significant weight to Ms Castle's statement, especially in the light of her absence, is against the weight of the evidence or rendered the decision not fair and equitable. We are not persuaded that is the case.
Fourthly, the appellants submitted the Tribunal's decision that the agreement was made between Ms Ashwood and Ms Medlock, rather than between Ms Medlock and Ashwood Park "was a distinction without a difference. Either or both [of the appellants] were entitled to be paid." No authority is cited for this proposition, which is plainly wrong and pays no regard to the history and purposes underlying the incorporation of companies. Ms Ashwood and Ashwood Park are separate legal entities. While Ms Ashwood may be the controlling mind of Ashwood Park, that does not make its acts hers, or vice versa. The Tribunal found that there was no evidence that Ms Ashwood purported to be acting for any entity but herself when the initial agreement was reached. While Ms Ashwood might think that her actions and those of her company are interchangeable, they are not. They are separate legal entities. If she enters into an agreement on behalf of Ashwood Park, she should be clear to make that understanding clear to the people she is dealing with or risk the consequences of being found a party to any agreement reached, with attendant liabilities.
The Tribunal explained why it concluded that the contract was with Ms Ashwood at [39]-[42] and not with Ashwood Park. That conclusion is not against the weight of the evidence and is fair and equitable.
Fifthly, the appellants argued that given the Tribunal's acceptance that:
[73]
(1) Ms Ashwood had been providing bare agistment to Valentine during the period on dispute, and
(2) at [72], bare agistment "would have cost the respondent in the order of $40.00 per week",
[74]
the Tribunal should have awarded the costs of agistment of the horse for the period until Valentine was returned to Ms Medlock.
[75]
(1) Arguing that under the oral agreement as modified on 8 May 2023 no fees were due and payable until Valentine was sold; and
(2) Pointing out that she had sought to terminate that agreement by a solicitors letter to Ms Ashwood dated 11 December 2023 demanding that Valentine be available for collection with 7 days but that Ms Ashwood had chosen to retain Valentine, claiming she held a lien on the horse. The Tribunal had found no such lien existed in the circumstances as only bare agistment had been provided in the period for which payment was claimed.
[76]
We think that there is merit to the appellants' submissions that, on the Tribunal's own findings, Ms Ashwood should be entitled for payment during the period the Tribunal found she, with Ms Medlock's agreement, provided Valentine with bare agistment. In this regard the Tribunal:
[77]
(1) Accepted that Ms Medlock had paid the first two invoices from the appellants which covered the period up to 30 October 2022: see [24] - [26]. Thereafter, no further payments were made; see [55].
(2) Found that for a period around Christmas 2022 Ms Ashwood placed the horses in her care on agistment elsewhere - at her costs "in the order of $40.00 per week, and not the "spelling" of the horse with associated care and feeding which is the rate that the respondent did charge for this period at $175.00 per week"; see [73].
(3) Found that from 30 October 2022 ('the end of the second invoice period') "there is insufficient evidence to show that the respondent delivered any of the agreed services in respect of the horse": see [87] -[90].
(4) As a result there was no lien over Valentine securing Ms Ashwood's costs: see [89].
(5) Found that on 8 May 2023 Ms Ashwood agreed with Ms Medlock to take her unpaid fees (future and owing) from the expected proceeds of sale of Valentine (see [56] and [86]).
(6) Found that Ms Medlock withdrew Ms Ashwood's authority to sell the horse by the solicitors letter dated 11 December 2023: see [28]. There was no dispute that the letter demanded the return of Valentine within 7 days.
[78]
In those circumstances, we think that the Tribunal failed to consider whether Ms Ashwood was entitled to recover the costs associated with the bare agistment of Valentine for period from 31 October 2022 onwards. While this could arguably give rise to a number of questions of law, none of them have been agitated before us by the appellants.
Instead the appellants have relied on leave grounds. We accept that the Tribunal's failure to consider the issue of agistment costs in its decision was not fair or equitable in the circumstances. The evidence before the Tribunal, and the conclusions of fact it had reached, required that it consider whether Ms Ashwood was entitled to recover agistment fees. In that sense, the decision was also against the weight of the evidence. We think that this is a mistake on the Tribunal's part which has resulted in an injustice to Ms Ashwood which should be remedied.
We note that during the course of argument the appellants conceded that, if the Tribunal's finding of fact were upheld, then no common law lien would arise over Valentine with respect to either of them.
[79]
As a consequence we will grant leave to appeal.
We are not satisfied that any of the other grounds for seeking leave are made out, or that they raise an issue of principle, a question of general public importance, or an injustice which is reasonably clear.
During the appeal hearing we canvassed with the parties what should happen if we allowed the appeal. There was agreement that we should reconsider any issues on the basis of the evidence that was before the Tribunal below.
[80]
The evidence before the Tribunal was that on 11 December 2023 Ms Medlock's solicitors wrote to Ms Ashwood demanding the return of Valentine. The Tribunal noted that there was agreement that this terminated Ms Ashwood's authority to sell the horse, at [28].
On reconsideration we are satisfied that this was a clear attempt by Ms Medlock to effectively terminate the agreement with Ms Ashwood for the agistment, care, training and sale of Valentine. The letter did not specify any breach of the agreement by Ms Ashwood, other than a refusal to return the horse on request as a ground for termination.
Ms Ashwood refused to return the horse and retained him, claiming a lien, which has since been found not to exist. Valentine was only returned when ordered to do so by the Tribunal's orders.
Because Ms Ashwood had no legal right to retain the horse, she cannot recover costs associated with agisting and caring for it after the time when she was required to return it by its owner. The solicitor's letter demanded the horse be made available for collection by no later than 18 December 2003. Ms Ashwood therefore cannot claim for agistment costs after then, because she was holding the horse, against Ms Medlock's instructions, without any legal entitlement to do so.
The best and only evidence of the costs of bare agistment of a single horse before the Tribunal below, and before us on reconsideration, is that it is $40 per week as found by the Tribunal. There is no contradicting evidence.
Under the terms of the agreement, Ms Ashwood is prima facie entitled to be paid for the cost of agisting Valentine form 31 October 2022, when the Tribunal found that the bare agistment began, to 18 December 2023, when Valentine should have been returned to Ms Medlock. That is 414 days, or 59 weeks and 1 day. At $40 per week this amounts to $2,365.71.
By demanding the return of Valentine, Ms Medlock chose to terminate the agreement with Ms Ashwood, a matter on which their agreement was silent. She thereby deprived Ms Ashwood of her agreed means of recovering her costs to date from the proceeds of his sale.
In Westralian Farmers Limited -v- Commonwealth Agricultural Service Engineers Limited[1936] HCA 6; () Dixon and Evatt JJ, at 380 said of a situation in a which a contract had been part performed:
[81]
...if all the facts have occurred which entitle one party to such a right as a debt, a distinct chose in action which for many purposes is conceived as possessing proprietary characteristics, the fact that the right to payment is future or is contingent upon some event, not involving further performance of the contract, does not prevent it maturing into an immediately enforceable obligation.
[82]
In Neale v Ancher Mortlock and Woolley Pty Ltd; Ancher Mortlock and Woolley Pty Ltd v Neale[2013] NSWCA 209 at [19] -[20] McColl JA explained:
[83]
It is unnecessary to recount the facts of Westralian Farmers. It is sufficient to observe that Dixon and Evatt JJ held (at 380) that in that case, the right to payment, while contingent at the time of the termination of the agreement, was a debt otherwise completely vested in the plaintiff as creditor and the termination of the agreement did not prevent it becoming absolute on the occurrence of the contingency, albeit that that occurred after termination.
Whether accrued rights to receive performance survive termination turns on the terms of the contract, the performance rendered by the party claiming the accrued right and the relations between the obligations sought to be enforced and the obligations discharged by termination: J W Carter, Breach of Contract, 2nd ed (1991) The Law Book Company Limited (at [1235]); see also J W Carter and J C Phillips "The Liability of Debtors and Guarantors Under Contracts Discharged for Breach"(1992) 22 University of Western Australia Law Review 338 (at 343).
[84]
Here Ms Ashwood agisted Valentine both on her own property and those of others (for which it was found she paid) in the period form 31 October 2022 to 18 December 2023. These were services for which she was entitled to be paid under the agreement.
On 8 May 2023 the agreement was varied, so that Ms Ashwood's right to receive payment was postponed until she achieved a sale of the horse. Her right to payment of her fees was vested in her and was a present right at the time of the variation. After the variation, when it was also agreed that Valentine would spend longer with her, her right to payment was postponed.
The Tribunal found that in her performance of the agreement from 31 October 2022 onward, Ms Ashwood provided no education and training for Valentine and made no real attempts to sell. In those circumstances is she entitled to recover for agistment fees under the agreement, or does her failure to honour her other obligations under the agreement prevent her from doing so? Is she entitled to recover for her part performance?
The Tribunal found that there was a total failure of consideration on Ms Ashwood's part, a finding which we think is at odds with her part-performance of the agreement by providing agistment. It is also inconsistent with the fact that the parties clearly understood that Ms Ashwood had an existing right to payment on 8 May 2023, when she agreed to postpose that right until she was paid from the proceeds of sale.
Considering the agreement between the parties, both original and as varied, and the obligations that each party now seeks to enforce, we find that Ms Ashwood had an accrued right, on termination of the agreement, to recover for fees properly due to her up to that time. The fact that part of the debt was already accrued and owing at the time of the variation, points to the right to payment continuing to accrue but being postponed until Valentine was sold, rather than being made contingent on the sale.
We are satisfied that the amount due to Ms Ashwood is $2,365.71 as calculated above.
[85]
This means that Ms Ashwood has been partially successful in her appeal. Ashwood Park's appeal, predictably, has failed.
We will set aside and replace orders 4, 5, 6 made by the Tribunal on 3 December 2024. Orders 3 and 4 relate to Ashwood Park's cross application which the Tribunal had no jurisdiction to hear. We will replace it with an order to that effect.
Order 5 and 6 will be replaced with an order under s 79O(b) of the FTA that Ms Medlock pay Ms Ashwood the sum of $2,365.71 by 28 September 2025.
We are satisfied that the orders we propose to make are fair and equitable as required by s 79U pf the FTA.
[86]
(1) Leave to appeal is granted.
(2) Appeal allowed.
(3) Orders 3, 4, 5 and 6 made by the Tribunal on 3 December 2024 are set aside and, in their place, the following orders are made:
(a) The cross application by the First Respondent (Ashwood Park Pty Ltd) is dismissed for want of jurisdiction.
(b) The applicant (Ms Medlock) shall pay the Second Respondent (Ms Ashwood) the sum of $2,365.71 by 28 September 2025.
[87]
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.
The Tribunal then set out a number of "agreed facts" at [20] - [29]:
Consequently, leave to appeal on the basis that new evidence is available is refused.
During the period, on 8 May 2023, Ms Ashwood and Ms Medlock agreed that charges for Valentine would be paid for from the proceeds of any sale (meaning payment of them was not immediately expected) without discussing what was owing.
In all circumstances, it was clearly open to the Tribunal to resolve the conflict between the parties about the invoices by finding that they had not been given to Ms Medlock. While reasonable minds may differ about the conclusion the Tribunal reached, it was not a decision made against the weight of the evidence. Similarly, we think it a fair and equitable outcome in the circumstances.
Thirdly, in the appellants' material before the Tribunal at first instance, were statements from Nicole Castle and Helen Greer, both employees of Ashwood Park. Ms Medlow requested their attendance at the hearing. A review of the transcript shows that Ms Greer was in attendance at that hearing and gave evidence, while Ms Castle was not. In the reasons, at [47d], the Tribunal states that Ms Greer was cross-examined on her statement, while Ms Castel was not. But, at [48], it said that Ms Castle was cross-examined. In the light of our review of the transcript, we think that statement in [48] to be mistaken. Ms Castle did not attend the hearing. Ms Castle's statement, in addition to disclosing the close personal relationship she has with Ms Ashwood, contained assertions about Valentine's training and care supportive of the appellants' position.
At paragraph 60 of the decision that Tribunal wrote: