On 14 December 2018 Asia Invest Enterprises Pty Ltd (Asia Invest) lodged an internal appeal under s 80 of the Civil and Administrative Tribunal Act 2013 (NCAT Act) against a decision made on 4 September 2018 in the Consumer and Commercial Division in proceedings GEN 17/41963, in which it was ordered to pay Silver Chef Rental Pty Ltd (Silver Chef) the sum of $40,286.50.
The background to the dispute is as follows. In 2016 Ms Zelal Bircan decided to open a takeaway restaurant in Cooma NSW, engaging the assistance of catering equipment supplier Petra Equipment Supplies (the trading name of Asia Invest) through a Mr Ayyash who was introduced to her as the manager of Petra Equipment. The quote for purchase of the equipment on 30 August 2016 was for a total of $42,849.40, in two invoices. The arrangement included finance to be provided by Silver Chef, which was to purchase the equipment from Asia Invest and rent it to Ms Bircan. The equipment was received in November 2016 and the café commenced operating in January 2017. In February 2017 Ms Bircan applied to purchase the equipment from Silver Chef, and received a total payout figure of $69,885.32.
In proceedings GEN 17/41963 Ms Bircan applied under the Fair Trading Act 1987 (FT Act) for orders that she not have to pay the sum of $27,037.92 to Silver Chef (being the difference between the payout figure and the amount in the invoices from Asia Invest); that Asia Invest return $27,037.92 to Silver Chef; and an order that Silver Chef refund to her the rental costs for a coffee grinder that was not received. In those proceedings Asia Invest was the first respondent, and Silver Chef the second respondent.
The orders made on 4 September 2018 were:
1 The first respondent, Asia Invest Enterprises Pty Ltd is to pay the second respondent the sum of $27,073.92 together with interest thereon at a rate 46.9% on that sum being a total of $40,286.50 as calculated in accordance with the rental contract between the second respondent and the applicant. Such payments are to be made immediately.
2 The second respondent is to pay the applicant the sum of $1,535.60 within 30 days of the date of these orders being the weekly payments for a Contas coffee grinder which was the subject of a rental agreement between the applicant and the second respondent by which grinder was never received. That sum is to be paid within 30 days of the date of these orders.
3 The applicant is not required to pay the second defendant the sum referred to in Order 1 herein being part of the monies claimed to be owing by her under the rental contract between them.
4 The Tribunal notes that the second respondent does not dispute the relief sought by the applicant that the first respondent refund a sum of $27,037.92 to it, being the difference between the purchase price of the goods as quoted to the applicant by the first respondent and the price at which the goods were sold by the first respondent to the second respondent for the purposes of a finance arrangement. The Tribunal notes further that the second respondent has indicated it is willing to cooperate with the first respondent and once a refund has been received it is willing to ensure that the applicant can continue a successful business relationship with the second respondent moving forward (should the applicant so which).
5 Each party is to bear its own costs.
The Notice of Appeal challenged Order 1, and noted that consequential orders may be required to Order 4.
The Notice of Appeal named Ms Bircan as the respondent, and did not include Silver Chef. Silver Chef, as a party to the proceedings below, is a party to the appeal: rule 29(b) Civil and Administrative Tribunal Rules 2014 (NCAT Rules).
The Notice of Appeal was lodged nearly 10 weeks after the period of 28 days specified in rule 25(4)(c) NCAT Rules for an internal appeal, and an extension of time under s 41 of the NCAT Act is required.
[2]
Availability of Appeal
An internal appeal may be made as of right on a question of law, and otherwise with the leave of the Appeal Panel: s 80(2) of the NCAT Act.
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. The Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that:
(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).
Even if the appellant 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 [2014] NSWCATAP 17, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve:
1. matters 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 what is arguable, or an error that is plain and readily apparent 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.
[3]
Stay
Asia Invest lodged an application for a stay of Order 1 together with its Notice of Appeal. The basis for that application was that Silver Chef had issued and served on 29 October 2018 a creditor's statutory demand for payment of the judgment sum of $40,286.50, and Asia Invest submitted that should the order not be stayed pending the outcome of the appeal it would have to pay it or be in default, resulting in an act of insolvency. On 7 December 2018 a Notification of Application to Wind Up Asia Invest appeared on the ASIC website.
The application for a stay was withdrawn, and the Appeal Panel was informed that Asia Invest paid the amount ordered in December 2018.
[4]
The Decision under Appeal
In his written reasons the Member first noted the procedural history of the matter, including the directions for the parties to provide to the Tribunal and to each other the documents on which they intended to rely, Ms Bircan by 22 December 2017 and the respondents by 9 February 2018. Material was received from Ms Bircan and from Silver Chef, but nothing was received from Asia Invest. On the day before the hearing listed in Cooma on 6 March 2018 Mr Pierre Safi, solicitor for Asia Invest, contacted the Tribunal to advise that Ms Bircan's documents had been filed on 2 January 2018 and that his client would be severely disadvantaged if the matter proceeded on 6 March 2018, and seeking an order that the matter be dismissed or adjourned to a date for further directions. At the hearing on 6 March 2018 the matter was adjourned, Asia Invest agreeing to pay all costs thrown away by Ms Bircan and Silver Chef, and Asia Invest was given until 27 March 2018 to file and serve its documents.
The hearing resumed in Sydney on 26 June 2018. The Tribunal noted (at [29]) that no documents had been provided by Asia Invest, notwithstanding the extension of time.
The evidence before the Member provided by Ms Bircan included invoices for the equipment obtained from Asia Invest, for $41,717.50 for 25 items (16 September 2016) and $1,131.90 for stainless steel sink bench and splashback; the Silver Chef rental agreement dated 10 November 2016, annexing a debit request authority in favour of ANZ Bank; and a further contract described as a rental agreement for small wares. The Member had invoices addressed to Silver Chef from Asia Invest dated 16 November 2016 referring to an order date of 30 August 2016 for appliances and equipment totalling $63,387.27 and a further invoice for a sum of $6,500, for items ordered on 10 November 2016. Ms Bircan provided a payout quote for the rental agreement dated 2 February 2017, for $66,663.45 including $94.81 for a coffee grinder returned as not working when it was delivered.
Silver Chef's documentary evidence included a rental agreement between it and Ms Bircan dated 28 November 2016, contract statements, Silver Chef's standard terms and conditions, and a Rent, Try, Buy application dated 29 August 2016.
The Member stated the substance of Ms Bircan's case in the following terms:
48 The equipment was received in November 2016 and the operation of the café commenced on 12 January 2017. The applicant claimed that she was given the option of either upgrading the equipment and continuing the rental agreement or purchasing the equipment from the second respondent in February 2017.
49 Upon applying to purchase the equipment she received a total payout figure of $69,887.32 which she felt seemed to be high for equipment worth $42,849.40. There is no evidence from either respondent that the applicant was advised as to any increase in price or that she was given any information which detailed any specific rate of interest or in particular any interest which would be likely to increase the price of the goods between November 2016 and February 2017.
50 Attempts to contact Mr Ayyash or his assistant proved fruitless but eventually Mr Ayyash advised that the prices had been increased because of a $14,000 electrician's account. Evidence before the Tribunal clearly establishes that account was paid by the applicant and not by the first respondent. It was claimed Mr Ayyash then indicated that the prices had been increased because he was required to cover his costs and he claimed that he did this by increasing the prices from $42,849.40 to $69,887.32.
The Member then considered the jurisdiction of the Tribunal under Part 6A of the FT Act, noting the definition of "consumer" in s 79D and s 79H. Referring to the $40,000 limit on the Tribunal's jurisdiction, the Member noted that the amount sought to be recovered under the claim was less than $40,000. The Member referred to the decision in Business and Professional Leasing Pty Ltd v Dannawi [2008] NSWSC 902, in which Young CJ in Eq had held that prices of separate items in one transaction ought not be aggregated to determine whether it was a consumer sale. The Member noted the decision in Safi v Heartland Motors Pty Ltd [2016] NSWCATAP 80, on whether a vehicle was of a kind that would ordinarily be acquired for personal, domestic or household use such that the Australian Consumer Law (ACL) would apply. The Member concluded that the Tribunal had jurisdiction to apply the provisions of the ACL, and referred to ss 18, 20, 21and 29 of the ACL. The Member continued:
67 There is little doubt on the evidence available that the conduct of the first respondent could be regarded as misleading, deceptive and unconscionable if one is to accept that there was an agreement to provide the goods to the applicant at a stated price of $42,849.40, yet without any notification by either the first or second respondents the goods were on-sold and rented back to the applicant at a stated value of $69,887.32. The inability of the first respondent or its representative to give a satisfactory explanation for this conduct is a matter of significance.
68 In relation to the conduct of the second respondent it is noted that the solicitor for the second respondent argued that the goods were on-sold on by the first respondent without any indication that they had been quoted at a much lesser price. Although it is suggested that no evidence has been provided in relation to the second respondent, it is clear that the documentation provided failed to give any indication of the total price or value of the goods which were to be rented and failed to provide any evidence of any applicable interest rate. Furthermore it would appear up until June of 2017 the second respondent sought to enforce its agreement against the applicant notwithstanding that it was by that time appraised of the alleged breaches by the first respondent.
The Member found (at [77]) that the conduct of the respondents could be defined as unconscionable conduct. He then considered whether Asia Invest and Silver Chef could be considered to be a supplier of goods and a linked credit provider within the meaning of s 278 of the ACL, and concluded that they were. He concluded:
86 For reasons outlined earlier in relation to misleading or deceptive conduct I am satisfied that both the first and second respondents have failed in their responsibility to the applicant in circumstances which can properly be defined as unconscionable conduct. It is noted that the second respondent is prepared to accept an order that the first respondent be ordered to pay to the second respondent the difference between the cost of goods quoted to the applicant by it and the price charged to the second respondent for such goods in order to determine hiring or leasing costs for them. The applicant's position can be protected by an order that she is not required to pay to the second respondent a sum of $27,073.92 and a further order that the said sum be paid by the first respondent to the second respondent.
[5]
Grounds of Appeal
The Notice of Appeal lodged on 14 December 2018 specified two grounds of appeal, being that the Tribunal erred in finding it had jurisdiction to hear and determine the matter, and erred in making findings of fact or reached conclusions against the weight of and not available on the evidence. The Notice of Appeal sought leave to appeal on the grounds that the decision was not fair and equitable, and the findings were against the weight of evidence.
In written submissions filed on 14 February 2019 Asia Invest identified three respects on which it submits the Tribunal erred on a question of law: in holding that it had jurisdiction in circumstances where it was not a "consumer claim"; in holding that a contract existed between Asia Invest and Ms Bircan in respect of the equipment; and in holding that there was a linked credit contract. In written submissions in reply filed on 6 March 2019, Asia Invest conceded that Ms Bircan was a "consumer" as defined in s 79D(a) of the FT Act, however maintained that the Tribunal erred in finding it had jurisdiction, based on the monetary limit of the Tribunal's jurisdiction under s 79S of the FT Act.
At the hearing of the appeal Asia Invest's representative handed up a handwritten document headed Appellant's Proposed Amended Grounds of Appeal. Ground 1 was that the Tribunal erred in finding jurisdiction to make an order pursuant to s 79P of the FT Act where the total exceeded the prescribed amount. Ground 2 was that the Tribunal erred in finding that there was a contract between Asia Invest and Ms Bircan, there being no evidence to support that finding. Ground 3 was that in the alternative, the finding was against the weight of the evidence. Ground 4 was that the Tribunal erred in finding that s 278 of the ACL applied. Ground 5 was that there was a denial of procedural fairness in denial of an opportunity to cross examine Ms Bircan.
Asia Invest sought leave formally to amend its grounds of appeal, submitting that proposed Grounds 1, 2, 3 and 4 had been raised in the written submissions. Asia Invest accepted that Ground 5 had not been identified earlier. Leave to amend was opposed by Ms Bircan and Silver Chef. After hearing submissions from the parties, the Appeal Panel was satisfied that it was appropriate to grant leave in relation to proposed Grounds 1, 2 and 4, which raised questions of law which had been flagged in the written submissions and responded to at least in part in Silver Chef's reply submissions. Leave was granted for those grounds, and refused for the new procedural fairness ground.
As amended, the grounds of appeal are:
1. The Tribunal erred in finding jurisdiction to make an order pursuant to section 79P of the Fair Trading Act 1987, in circumstances where the relevant total of the order or orders exceeded the prescribed limit;
2. The Tribunal erred in finding that a contract existed between the appellant and the first respondent where there was no evidence to support the finding; and
3. The Tribunal erred in finding that section 278 of the Australian Consumer Law applied.
As confirmed after the hearing, Asia Invest maintains its application for leave to appeal based on cl 12(1)(b) of Sch 4 to the NCAT Act on the basis that it was not open to the Member to find Asia Invest had engaged in unconscionable conduct, so far as it relates to the finding by the Tribunal that a contract existed between Asia Invest and Ms Bircan.
[6]
Reply to Appeal
In its Reply to Appeal filed on 16 January 2019 (responding to the original grounds of appeal) Silver Chef contended that there was no error of law in the finding of jurisdiction, and jurisdiction was not challenged during the hearing; and that the findings made by the Member were available to be made on the evidence before the Tribunal, and Asia Invest had put on no evidence during the proceedings. Silver Chef opposed leave to appeal, because Asia Invest had put on no evidence despite being given two opportunities to do so, and the findings were consistent with the evidence before the Tribunal.
In her Reply to Appeal filed 30 January 2019 Ms Bircan supported the orders made by the Tribunal.
[7]
The Appeal
The Appeal Panel has a copy of transcript of the hearing on 26 June 2018, and copies of documents in evidence before the Member including submissions made on behalf of Silver Chef. Asia Invest provided written submissions on 14 February 2019 and submissions in reply on 6 March 2019. Silver Chef provided written submissions on 1 March 2019.
In support of its application for an extension of time to lodge the appeal, Asia Invest provided witness statements by Mr Pierre Safi, solicitor for Asia Invest, dated 5 March 2019, and Mr Paul Ayyash, General Manager of Asia Invest, dated 5 March 2019. The witness statements were admitted and Mr Safi and Mr Ayyash gave oral evidence and were cross examined.
Mr Ayyash's evidence was that his ability to focus on the business was significantly affected by the death of his cousin on 23 July 2018. He became aware through Mr Safi that the decision had been given on 4 September 2018, and told Mr Safi that he wanted to appeal; he did not respond to Mr Safi's further requests for instructions until towards the end of November 2018. In mid December 2018 Silver Chef applied to have Asia Invest wound up and the judgment amount was paid.
The evidence of Mr Safi was that he had attempted to obtain instructions from Mr Ayyash on various occasions in September and October 2018 regarding an appeal, and in November had a discussion about engaging counsel to advise. On 21 November 2018 he engaged counsel to draft the Notice of Appeal and that was finalised in the beginning of December 2018.
At the conclusion of the appeal hearing, in which the parties had made submissions on the application to extend the time to lodge the appeal, the Appeal Panel indicated that it would determine that application, allowing the parties the opportunity to provide further written submissions, in particular on the length of the delay and the appellant's prospects of success.
[8]
Application to extend time to lodge the appeal
The Appeal Panel in Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 at [21]-[22] set out the relevant principles in relation to an extension of time in which to bring an appeal (references omitted):
21. Time limits, including the specification of the time within which an appeal from an internally appealable decision to the Appeal Panel of the Tribunal must be lodged, are established by legislation for the purpose of promoting the orderly and efficient conduct of proceedings in the Tribunal, providing certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation. For these reasons, these time limits should generally be strictly enforced. That is not to say, however, that exceptions should not be made where the interests of justice so require. The express power in s 41 of the Act to grant extensions of time allows the Tribunal to prevent the rigid enforcement of time limits becoming an instrument of injustice. As the decision in Gallo v Dawson quoted above makes clear, it is generally the case that in order for the power to extend time to be exercised in an appellant's favour there must be material upon which the Appeal Panel can be satisfied that to refuse the application for an extension of time would work an injustice.
22. The considerations that will generally be relevant to the Appeal Panel's consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:
(1) The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant;
(2) The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a "vested right" to retain the benefit of that decision and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success;
(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:
(a)The length of the delay;
(b)The reason for the delay;
(c)The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and
(d)The extent of any prejudice suffered by the respondent (to the appeal),
and
(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable.
Asia Invest submits that an extension of time should be granted in the interests of justice. The lateness was primarily caused by the fact that it required time to seek and finally obtain legal advice after 4 September 2018; the lateness was relatively minor and did not materially prejudice the other parties.
Silver Chef opposes an extension of time. It submits that Asia Invest's solicitor has been instructed and engaged in the proceedings since March 2018, including attending and providing advice to Asia Invest in the hearing on 26 June 2018. Silver Chef has suffered prejudice, in relying on the finality of the Tribunal order and has undertaken enforcement action through the Supreme Court of Queensland, and the appeal is lacking in merit.
Ms Bircan opposes an extension of time, submitting that Asia Invest has provided an inadequate explanation as to why it did not lodge the appeal in time; Mr Safi has been representing Asia Invest since March 2018 and was present at the hearing on 26 June 2018; and Asia Invest has since the first hearing requested extensions of time and required adjournments.
[9]
Length of the delay
In its written submissions received on 26 March 2019 Asia Invest accepts that there is a substantial delay. The Appeal Panel agrees that the delay is substantial.
Asia Invest submits that the mere fact of a substantial delay is not a bar to the grant of an extension. The authorities on which Asia Invest relies support that general proposition, however whether an extension of time should be granted requires consideration of the other factors identified in Jackson, including whether there is otherwise a satisfactory explanation for the delay, and the prospects of success: Profitability Consulting Pty Ltd v Thorpe [2019] NSWCATAP 20; ZGW v ZGX [2018] NSWCATAP 297. As submitted by Silver Chef, an extension may be refused even if delay is relatively short: Zhang v Tam [2019] NSWCATAP 32.
[10]
Reason for the delay
Asia Invest submits that the reasons for delay, being the difficulty for Mr Ayyash in managing the business and the conduct of the proceedings until the end of October 2018, and difficulty for Mr Safi in locating counsel to advise on prospects and settle the Notice of Appeal, are satisfactory and ought to be accepted.
The Appeal Panel does not agree. Neither of those explanations was provided with the Notice of Appeal filed on 14 December 2018. That document stated that the delay was primarily due to the need to obtain legal advice concerning the hearing, and stated that "the appellant was not legally represented at the hearing". The latter statement is not supported by the transcript of the hearing on 26 June 2018. Mr Safi appeared on that occasion. After a discussion between the Member and Mr Safi, in which the Member noted that Asia Invest had not provided any documentary evidence, or paid the costs thrown away from the previous occasion, and Mr Safi stated that his client had taken the position forensically that nothing needed to be put in reply (Tp3 line42); a discussion between the Member and Mr Safi about the jurisdictional issues including the monetary limit; and acceptance by Mr Safi (Tp7 line44) that the directions of the Tribunal had been ignored by his client, the Member refused leave for Mr Safi to represent Asia Invest. Mr Ayyash took carriage of the matter at the hearing. The transcript confirms (Tp14, Tp 53) that Mr Safi remained in the hearing room and provided guidance to Mr Ayyash. The Appeal Panel is satisfied that Asia Invest had, through its representative Mr Safi, adequate notice of the matters traversed during the hearing and was thus in a position on 4 September 2018 when the reasons were provided to consider its position on an appeal, and that Mr Safi was in a position to advise on appeal prospects before October 2018.
The chronology on which Silver Chef relies supports the proposition that Asia Invest was well aware of the time limit and could have lodged its appeal well before 14 December 2018. An affidavit of Mr Elton Grace of 27 February 2019, which was not disputed, confirms that Asia Invest's solicitor advised Silver Chef's solicitor on 10 September 2018 that it was considering an appeal; and that on 8 October 2018 Silver Chef's solicitor sent Asia Invest's solicitor a demand for payment of $40,286.50, noting that the time for appeal had expired. It was not until after Silver Chef commenced winding up proceedings in the Supreme Court of Queensland on 6 December 2018 that the Notice of Appeal was filed.
To the extent that the delay may be attributable to the actions of Asia Invest's legal representative, there is authority that the appellant should not be penalised for delay caused by or attributed to its legal representatives: Stollznow v Calvert [1980] 2 NSWLR 749. At 753 Moffitt P (with whom Hope and Mahoney JJA agreed) held:
As a matter of principle, the blamelessness of a plaintiff personally for the delay is a fact relevant to be considered, along with other relevant facts. The submission of the appellant to the contrary, namely, that the fault of the respondent's solicitor should be attributed vicariously to the respondent so that, despite the absence of any personal fault she should be held to be to blame and the proceedings necessarily dismissed, should be rejected.
In the circumstances of this matter, there is no indication in the evidence of either Mr Safi or Mr Ayyash of any explanation as to why a Notice of Appeal could not have been lodged on or around 4 September 2018 when Mr Ayyash states that he became aware that the decision had been delivered and he informed Mr Safi of his desire to pursue an appeal of the decision. While it may be accepted that he had personal difficulties at the time, there is no indication of what Mr Ayyash did to progress an appeal, and the evidence does not satisfy us that he was blameless.
The Appeal Panel finds that Asia Invest has not provided satisfactory reasons for the delay.
[11]
Prejudice to the respondents
Asia Invest submits that if the extension is granted the prejudice to the respondents will rise no higher than a loss of finality, which is outweighed by the prospects of the appeal succeeding.
Silver Chef submits that it has suffered prejudice, referring to the several attempts by its solicitors to obtain payment, the service of a statutory demand, the commencement of the winding up proceedings, before payment on 20 December 2018. Silver Chef relied on the finality of the orders. Silver Chef submits that the orders also affect arrangements between it and Asia Invest.
The importance of certainty for the parties to proceedings, especially the party in whose favour orders have been made, and achieving finality in litigation, is a significant factor, as identified in Jackson and other decisions of the Appeal Panel including Shelton v Phoo [2015] NSWCATAP 120. Not only was Silver Chef entitled to take steps to enforce the order in its favour after the period for an appeal had expired, but Ms Bircan was entitled to consider that the matters in dispute between the parties, including her liability to pay $27,037.92, had been resolved. The delay in lodging the appeal gave rise to prejudice to both respondents.
[12]
Prospects of success
As held in Jackson, in circumstances where the Appeal Panel is of the view that the delay is substantial, the explanation for the delay is not adequate, and the respondents have been prejudiced, it is relevant whether Asia Invest can show that its case has more substantial merit than merely being fairly arguable.
A significant issue in this appeal has been achieving any clarity as to the grounds of appeal on which Asia Invest relies. As discussed at paragraphs [21]-[26] above, that was not formalised until the appeal hearing.
Asia Invest submits that the prospects of the appeal succeeding are strong. In its supplementary submissions filed on 26 March 2019 Asia Invest points to the Tribunal's ultimate finding that it had engaged in unconscionable conduct, based on two preliminary findings, that the relevant conduct included entering into a contract with Ms Bircan, and that there was a linked credit contract to which s 278 of the ACL applied. Asia Invest submits that there was no evidence of a contract with Ms Bircan and it did not supply the goods to her; and that s 278 could not apply as Ms Bircan was not a "consumer" as defined by s 3 of the ACL. Secondly, Asia Invest relies on its ground of appeal that the Tribunal did not have jurisdiction to make the order the subject of the appeal, because s 79S(4) of the FT Act provides that the Tribunal has no jurisdiction to make an order under s 79P, in determining a consumer claim in which there is more than one respondent, if the amount or amounts exceed $40,000.
As to the second point, which is Ground (1) (see paragraph [25] above), Asia Invest concedes in its submissions that there is a live issue as to whether the Tribunal could simply cap the amount of the order. There is authority for the proposition that s 79S operates as a cap: Pathways Psychology Institute Pty Ltd v RTO Experts Pty Ltd [2017] NSWCATAP 65 at [9]. This ground of appeal would appear to have limited prospects of success.
There is limited prospect for success on Grounds (2) and (3), which relate to the Tribunal's analysis of the application of the ACL. The Tribunal has jurisdiction under Part 6A of the FT Act to hear and determine a "consumer claim", defined in s 79E to mean a claim by a consumer that arises from a supply of goods or services by a supplier, whether or not under a contract. As discussed in Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186, a consumer claim may be based on the consumer guarantees in the ACL, applying as a law of NSW (s 28 FT Act). Those consumer guarantees require consideration of the respondent's "conduct", and it was the conduct of Asia Invest and Silver Chef on which the Member focussed, and not on whether there was a contract between Asia Invest and Ms Bircan. The question of whether a particular transaction falls within the ACL, in particular whether a person is a "consumer" as defined in s 3 of the ACL, is not free from difficulty. Section 3(10) of the ACL provides a presumption unless the contrary is established, that a person is a consumer in relation to provision of goods and services. The Member addressed that question, and the question of whether the requirements of s 278 of the ACL were met, in detail in his reasons, referring to relevant authority. To succeed on Grounds (2) or (3) Asia Invest would have to establish an error on a question of law either in the interpretation or application of the relevant legal principles, or an error in the fact-finding process such that there was no evidence to support the findings: Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. On consideration of the Member's reasons, neither ground could be said to be strongly arguable.
To warrant a grant of leave to appeal Asia Invest would have to establish that it may have suffered a substantial miscarriage of justice because the decision was against the weight of the evidence. That would require, as discussed in Collins v Urban at [77], a finding that the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it could be said that the conclusion was not one that a reasonable tribunal member could reach. In circumstances where Asia Invest put on no evidence to counter that provided by the other parties, including on whether Ms Bircan could be said to be a "consumer", it cannot be said that this application for leave has substantial merit.
[13]
Conclusion
Having regard to the lack of prospects of success, together with the inadequate reasons for what was a significant delay in lodging the appeal, and the prejudice to the respondents, the Appeal Panel concludes that Asia Invest has not shown that strict compliance with the time limit in rule 25 of the NCAT Rules for the lodging of an appeal would work an injustice on it. The Appeal Panel is not prepared to grant the appellant an extension of time in which to appeal. Accordingly, the appeal must be dismissed.
The Appeal Panel makes the following orders:
1. The application for an extension of time for the filing of the Notice of Appeal is refused.
2. The appeal is dismissed.
3. Any party may file written submissions within 14 days seeking an order in relation to the costs of the appeal.
4. If a party files submissions in accordance with order 3, any other party may file submissions in response within a further 14 days.
5. Any submissions filed in accordance with orders 3 and 4 should address whether the question of costs may be determined on the papers and without a hearing pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013.
[14]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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: 02 July 2019