The appellant (then the applicant), a resident of NSW, contracted with the respondent which conducts business as a marine mechanic in Sutherland Shire NSW, for the repair of the applicant's trailer boat. The boat was delivered to the respondent on 3 April 2017.
In an application lodged 18 November 2018, the appellant claimed the payment of $15,500 from the respondent being in effect a refund of monies paid (totalling $8,600) and compensation above that amount, effectively in total to provide for removal and replacement of the repaired stern drive within a new transom cover. The appellant said that the respondent charged for services to repair and replace the transom cover knowing that the stern timbers in which the stern drive was secured were structurally unsound, failed to warn that the stern drive hydraulic pump was compromised and delivered the boat after repairs knowing that the condition of the transom made it unseaworthy. The appellant said that the conduct alleged was intentional but also alleged breach of consumer guarantees.
The primary member, who heard the matter on 4 March 2019 and delivered a considered reserved decision on 5 April 2019, referred to extensive documents and oral evidence, including cross-examination, at the hearing. The primary member identified the following factual issues: scope of contract, including any duty on the respondent to warn of the aged condition of the boat; was the boat already aged and obviously rotting when delivered to the respondent; was the stern drive repaired with due care and skill; was the boat adequately cared for when not picked up on completion of repairs and left for some six months with the respondent and what was the scope of the respondent's obligation as bailee in that respect; did the respondent intentionally cause harm to the boat by doing faulty repairs.
The primary member found that there was no documentation of the scope of works. He accepted the evidence of the respondent's principal, who primarily conducted the communications and works for the respondent, that the respondent was engaged to replace the corroded transom housing around the engine and no more in respect of structural works or warnings: [at [13]] "The contract did not require the respondent to advise on the condition of the boat or give any warnings as to its structural condition other than in relation to the transom housing".
The primary member elaborated on this acceptance of the respondent's principal's affidavit evidence, cross-examined on and corroborated in part by a mechanic employee of the respondent who worked on the boat who was also cross-examined. The primary member recited the principal's affidavit evidence, as supplemented in cross-examination, as follows [at [14]]: the principal's first impression was the boat was in poor condition and the cover, although not as old as the boat, was torn in the centre, contained holes and did not fit the boat; the boat was delivered stripped of seats, fuel tank and engine cover (this was common ground); the principal offered to replace the transom cover knowing the boat was old; to do this the engine had to be removed; as soon as the engine and transom housing were removed it became clear that the housing and bearers had wood rot; the principal informed the appellant that it would cost $10,000 (this is additional to the repairs contracted for) to fix the wood rot; the appellant told the principal to work on the transom housing and to reinstall the engine, for which the respondent charged (and the appellant paid) $7,500; the appellant paid a further $1,100 for a repair to the carburettor; the respondent tested the boat on water, including with the appellant on 15 June 2017, and noticed nothing amiss; [at [15]] the mechanic noted the wood rot on first inspection after delivery which was shown to the appellant on his return to the workshop; the mechanic did not give evidence that he heard the conversation about the appellant's instructions but did test the engine and noticed the flat spot in the carburettor.
At [16] the primary member repeated the principal's evidence that the boat's being left at the respondent's until 9 October 2017 allowed ingress of rainwater through the defective cover which would have exacerbated the rotting. The primary member said that at this point the respondent was not holding the boat as a bailee for reward and it was the appellant's duty to maintain the boat. The appellant admitted he returned after the storm to sew up some tears in the cover but this was not effectual. The appellant said that he had nowhere to store the boat for the period outside his then home in Sutherland Shire because of a change in Council policy about parking boats in the street. He collected the boat when he moved to the Central Coast. He said he gave the respondent's principal his diving gear in return for the storage, which the respondent's principal accepted for the last part of the storage when it was extending in time and he needed the space.
The primary member at [17] gave little weight to the appellant's expert report of 22 January 2018 that the transom assembly had decay and moisture because of his finding that the respondent's principal pointed this out on delivery of the boat.
At [18] the primary member accepted that the charge for the work on the transom cover was about what the respondent suggested it would be, and said that there had been no mishaps after the repairs arising from the alleged failure to warn of the boat's condition, as the appellant had not used the boat for nearly a year after repair, had left it in the circumstances already described when (as found in [16] and [17]) it was more likely than not that further harm was caused by the length of open storage, and the boat had not fallen apart when in use. Accordingly no loss was proved.
Overall, the primary member held there was no failure to store the boat adequately, the respondent did not do intentional harm to the boat, and there was no failure of due skill and care in the repair service within the scope of the contract, with no proved loss in any event. The application was dismissed "because: having considered the material placed before it, the Tribunal is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been established". There was no mention of costs and no costs orders.
On the relevant jurisdictional grounds, as the primary member found, the appellants were consumers and the respondent a supplier, the claim was a consumer claim for supply of goods and services in NSW and was brought within the 3 year time limit under Part 6A (ss 79D-79L) of the Fair Trading Act 1987 (NSW) (FTA). The claim is under the jurisdictional limit provided for in FTA s 79S of $40,000.
FTA s 28 makes the Australian Consumer Law (NSW) (ACL) part of the law of New South Wales.
The ACL provides, in respect of the supply of goods to a consumer, guarantees that the goods supplied are of acceptable quality (ACL s 54), are reasonably fit for any expressly or implicitly disclosed purpose or supplier-represented purpose (s 55), and correspond with the description by which the goods are supplied (s 56). Where these guarantees are not complied with, the consumer has rights pursuant to ACL ss 259-264 to remediation, to compensation for reasonably foreseeable loss or damage arising by reason of the non-compliance, and, in the case of a major failure, the right to reject the goods and obtain a refund, provided that such right to claim a refund is exercised within the "rejection period".
The ACL provides, in respect of the supply of services to a consumer, guarantees that the services were supplied with due care and skill (ACL s 60) and were reasonably fit for any expressly or implicitly disclosed purpose or result (s 61). Where these guarantees are not complied with, the consumer has rights pursuant to ACL ss 267-269 to remediation, to compensation for reasonably foreseeable loss or damage by reason of the non-compliance and, in the case of a major failure, or another failure which has not been remedied by the supplier as required, the right to obtain a refund, provided that such right to claim a refund is exercised within the "rejection period".
The Tribunal implicitly dealt with the application pursuant to s 60 (supply with due care and skill).
Section 64 of the ACL provides that the consumer guarantees cannot be excluded; however, s 64A permits the contractual limitation of the remedies for breach of a consumer guarantee if the goods or services are of a kind not ordinarily acquired for personal, domestic or household use or consumption.
In Safi v Heartland Motors PL t/as Heartland Chrysler [2016] NSWCATAP 80 at [85]-[107] the Appeal Panel analysed the case law on what constituted a major failure under the consumer guarantee provisions of the ACL mentioned above, summarising its conclusions at [99]-[102]. The Panel rejected the view that any breach of the guarantee of acceptable quality is a major failure. Under s 260(a), the test is objective. A series of individual or specific defects taken as a whole may constitute a major failure. The cost of repairs relative to purchase price and the nature of the defect are factors. Of particular significance is whether the defects are "teething problems" or go beyond that in terms of extent, timing and frequency of repair: that is, whether or not the defects can be remedied easily and in a timely manner. Overall, the test is whether, faced with advance knowledge of the problems and what was needed in terms of time, costs and degree of difficulty to fix them, a reasonable consumer would have bought the goods or bought nothing or something else.
Under ACL s 260(a), the rejection period for goods that are subject to a major failure is the period from the supply of the goods within which it would be reasonable to expect the relevant failure to comply with a consumer guarantee to become apparent, having regard to the type and likely use, and length of time and amount of use before a failure would reasonably become apparent. For a major failure constituted by chronic or repetitive defects taken as a whole, such a period is likely to be longer than for a single catastrophic defect. If there is a major failure, the consumer's entitlement to a refund is not dependent on proof of loss: Ferraro v DBN Holdings Aust PL t/as Sports Auto Group [2015] FCA 1127.
[2]
Grounds of appeal
The Notice of Appeal, lodged within time on 29 April 2018, is not an easy document to understand. Having regard to the approach taken in John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 in a situation where there was no legal representation of the appellant, we have sought to discern the substance of the grounds of appeal.
The grounds that we have discerned are, in summary, as follows, leaving aside those critical of the personal conduct of the respondent's solicitor and the primary member, which were not pressed at hearing, and the ground of offers covered by joint settlement privilege which was not waived and was said to be for a commercial resolution rather than reflecting the respondent's view of the position on a contest:
1. The condition of the boat on delivery had no bearing on the respondent's duty to warn "even if the boat was delivered 'full of water'!".
2. The primary member did not place weight on the expert report.
3. The effect of water ingress from the boat cover was irrelevant.
The Notice of Appeal also stated that leave to appeal from the primary decision (a decision in the Consumer and Commercial Decision) ought to be granted because the primary decision was not fair and equitable, against the weight of evidence and a clear injustice.
[3]
Applicable legal principles
Section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) states:
"Any internal appeal may be made:
(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."
Clause 12 of Schedule 4 to CATA states:
An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
(a) the decision of the Tribunal under appeal was not fair and equitable, or
(b) the decision of the Tribunal under appeal was against the weight of evidence, or
(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
A Division decision is a primary decision of the Consumer and Commercial Division. The primary decision here is such a decision.
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 taking into account an irrelevant consideration or not taking into account a relevant consideration, which includes not making a finding on an ingredient or central issue required to make out a claimed entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179.
These categories are not exhaustive of errors of law that give rise to an appeal as of right. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13], the Appeal Panel enunciated the following as specifically included:
1. whether the Tribunal provided adequate reasons;
2. whether the Tribunal identified the wrong issue or asked the wrong question;
3. whether it applied a wrong principle of law;
4. whether there was a failure to afford procedural fairness;
5. whether the Tribunal failed to take into account a relevant (that is, a mandatory) consideration;
6. whether it took into account an irrelevant consideration;
7. whether there was no evidence to support a finding of fact; and
8. whether the decision was legally unreasonable.
The "no evidence" ground must identify that there is no, or substantially inadequate, evidence to support a "critical" or an "ultimate" fact in order to constitute a jurisdictional error (a form of error of law): AAI Ltd t/as GIO v McGiffen (2016) 77 MVR 348, [2016] NSWCA 229 at [81]; Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263, [2001] FCA 865 at [52]-[56].
A failure to deal with evidence may also in the appropriate circumstances be characterised as a failure to have regard to a relevant consideration or a failure to have regard to critical evidence. It is generally not mandatory to consider particular evidence: Rodger v De Gelder (2015) 71 MVR 514, [2015] NSWCA 211 at [86]; Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443, [2012] NSWCA 244 at [15] per Basten JA (McColl and Macfarlan JJA agreeing). However, by s 38(6)(a) of the NCAT Act, the Tribunal "is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings." This obligation includes an obligation to have regard to material which has been disclosed to the Tribunal and which is relevant to the facts in issue, at least where that material is of some significance. Further, at common law, where a decision-maker ignores evidence which is critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker, this is an error of law: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [62]-[63]; Eadie v Harvey [2017] NSWCATAP 201 at [61]-[62].
Legal unreasonableness can be concluded if the Panel comes to the view that no reasonable tribunal could have reached the primary decision on the material before it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 364 [68]). A failure properly to exercise a statutory discretion may be legally unreasonable if, upon the facts, the result is unreasonable or plainly unjust: Li (2013) 249 CLR 332 at 367 [76]). There is an analogy with the principle in House v The King (1936) 55 CLR 499 at 505 that an appellate court may infer that there has been a failure properly to exercise a discretion "if upon the facts [the result] is unreasonable or plainly unjust" and legal unreasonableness as a ground of judicial review: Li at 367 [76]. Further, there is some authority to the effect that unreasonableness as a ground of review may apply to factual findings, although this has not been finally resolved: see Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 at [153]; Wehi v Minister for Immigration and Border Protection [2018] FCA 1176 at [29]; Legal Profession Complaints Committee v Rayney [2017] WASCA 78 at [193].
The Appeal Panel has stated that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to look at the grounds of appeal generally, and to determine whether a question of law has in fact been raised, subject to any procedural fairness considerations in favour of the respondent: Prendergast at [12].
Turning to errors of fact, in Collins v Urban [2014] NSWCATAP 17, after an extensive review from [65] onwards, an Appeal Panel stated at [76]-[79] and [84(2)] as follows:
74 Accordingly, it should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where 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.
75 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that:
1 If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12].
2 The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].
…
78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence.
79 In order to show that a party has been deprived of a "significant possibility" or a "chance which was fairly open" of achieving a different and more favourable result because of one of the circumstances referred to in cl 12(1)(a), (b) or (c), it will be generally be necessary for the party to explain what its case would have been and show that it was fairly arguable. If the party fails to do this then, even if there has been a denial of procedural fairness, the Appeal Panel may conclude that it is not satisfied that any substantial miscarriage of justice may have occurred - see the general discussion in Kyriakou v Long [2013] NSWSC 1890 at [32] and following concerning the corresponding provisions of the [statutory predecessor to CATA (s 68 of the Consumer Trader and Tenancy Tribunal Act)] and especially at [46] and [55].
84 The general principles derived from these cases can be summarised as follows: …
(2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve:
(a) issues of principle;
(b) questions of public importance or matters of administration or policy which might have general application; or
(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand;
(d) a factual error that was unreasonably arrived at and clearly mistaken; or
(e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
The question of what constitutes significant new evidence not reasonably available at the time the proceedings under appeal were being dealt with was considered by an Appeal Panel in Owen v Kim [2017] NSWCATAP 26. In that appeal the Appeal Panel stated at [37] -[39]:
37 In Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29 the Appeal Panel stated at [109] in connection with cl 12(1)(c) of Schedule 4 to the Civil and Administrative Tribunal Act:
'In order to fall within this paragraph the appellant must be able to point to evidence which:
(1) is significant; and
(2) has arisen and is new in the sense that it was not reasonably available at the time the proceedings below were being heard.'
38 In Leisure Brothers Pty Ltd v Smith [2017] NSWCATAP 11 the Appeal Panel stated at [40 ]:
'The meaning of this clause was considered by the Appeal Panel in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111. At [23] - [24] the Appeal Panel said:
'23 Unlike the WIM Act, the expression "reasonably available" is not qualified by the words "to the party". This difference suggests that the test of whether evidence is reasonably available is not to be considered by reference to any subjective explanation from the party seeking leave but, rather, by applying an objective test and considering whether the evidence in question was unavailable because no person could have reasonably obtained the evidence. For example, in Owners SP 76269 v Draybi Bros [2014] NSWCATAP 20 at [114] the Appeal Panel refused leave because, although the appellant may not have been aware of the evidence (being an email), it could have obtained the evidence by summons. In Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 at [17] the Appeal Panel granted leave because the respondent to the appeal had fraudulently altered evidence. The party seeking leave under cl 12(1)(c) could not reasonably have had available to them the evidence that the report in question had been fraudulently altered at the time the proceedings were being dealt with by the Tribunal. That fact was not known to the appellant at the time of the hearing and could not reasonably be known due to fraud.
24 Each of these cases illustrates that something more than a party's incapacity to procure evidence is necessary to satisfy the requirements of cl 12(1)(c).'
39 As stated at [27] in Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown:
'the issue is whether, objectively, the evidence has arisen since the hearing and was "not reasonably available" at the time of the hearing.'
In Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 an Appeal Panel stated at [10]:
An appeal does not provide a losing party with the opportunity to run their case again except in the narrow circumstances which we have described. Mr Ryan has not satisfied us that those circumstances apply to his case and we refuse permission for him to appeal.
Even if the appellant establishes that he or she may have suffered a substantial miscarriage of justice within cl 12 of Sch 4 to the NCAT Act, the Appeal Panel has a discretion whether or not to grant leave under s 80(2) of that Act (see Pholi v Wearne [2014] NSWCATAP 78 at [32]) The matters summarised in Collins v Urban, above, at [84(2)] will come into play in the Panel's consideration of whether or not to exercise that discretion.
In dealing with errors of law and errors of fact, the Panel must be cognisant that the two can intermingle. The Panel must also be alert that, under Australian law, there is a different approach to matters between two situations. The first of these is where the particular decision has involved evaluation from findings of primary facts and the drawing of inferences therefrom on which reasonable minds may differ but which must be accepted as legally correct unless overturned or varied on appeal. The second situation arises where there has been an exercise by the primary decision-maker of a discretion or choice embodied in the statute or law being applied, including as to whether relief is to be granted or refused and the form of relief: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [18], [20], [26], [30]-[32], [43]-[45], [48]-[49], [55]-[56], [85]-[87], [127]-[128], [153]-[155].
[4]
Error of law
The first ground of appeal could be said to be an error of law. It is possible for such a duty to arise within or consequential on (even if not within) the scope of a contract, in respect of provision of professional services.
We do not however need to determine whether or not the primary member's findings on the narrow scope of works and on there arising no duty to warn were incorrect as a matter of law because of the findings we refer to below, which indicate that even such an extended duty to warn was fulfilled on the findings of fact.
For similar reasons we do not need to determine if the third ground constituted an error of law in respect of the scope of duty of care of a gratuitous bailee who well into the bailment arguably became a bailee for reward when the respondent's principal received the scuba gear for the final period of storage.
[5]
Grant of leave to appeal on questions of fact
Others may have come to different conclusions on the evidence from the primary member. But that is not the test for grant of leave to challenge alleged errors of fact, as we have already pointed out. In saying this, we are not indicating that we would have come to a different conclusion after hearing the parties and reading the material from the primary member, only that we are not permitted to address the question in that way on appeal.
The primary member, in assessing the material, clearly described what it was, what he gave weight and preference to, and why. With respect, we can see nothing in his factual conclusions that was so against the weight of evidence or so unfair and inequitable as to open the gate for a consideration of a grant of leave, let alone to pass through the other gates we have described above.
Indeed, having accepted the evidence of the respondent's principal in preference to that of the applicant on the critical issue, being that the principal did point out to the appellant the wood rot and received instructions to go ahead with the repairs despite it, the question of the scope of duty to warn fell away because any duty had been fulfilled and the appellant responded with instructions after the warning to go ahead anyway. The respondent did not become an insurer of the appellant's safety by doing limited repairs that it was instructed to do after giving a warning.
Further, the primary member accepted the principal's evidence that the appellant participated in a satisfactory on-water trial in mid-2017, that the boat cover to the appellant's knowledge was in such a condition that it would not prevent water ingress to the engine and transom area, that the appellant left the boat with the respondent for the appellant's convenience knowing it would have to be outside, that the storm in September 2017 occurred about a month or more before the boat was finally collected and that the appellant chose not to replace but, rather, to attempt to repair the cover which still left it inadequate for purpose. The appellant also stressed to us that the rot damage would have been done by sea water not rain water ingress which largely (apart from the short sea trials) predates the period the boat was left with the respondent and is the subject of the earlier discussion. It is clear from the principal's evidence that the scuba gear was offered and given only after the storm had occurred. In those circumstances any duty we might find on the respondent as a bailee, for reward or otherwise, does not need to be analysed because in our view it would have been fulfilled.
We are reinforced in our conclusions that the factual findings that supported the fulfilment of whatever duties (if any) the respondent had (beyond the repair of the transom cover and the carburettor) were properly based in the evidence and do not give support to a challenge on appeal, by facts in the respondent's affidavit evidence that the primary member clearly accepted, because they were ancillary to and consistent with his findings, but did not expressly mention.
In particular:
1. The state of the cover was pointed out to the appellant on delivery and the appellant said not to worry about it, thereby accepting the risk from storage in the open, and storage in the open was clearly common ground when the boat was not being worked on.
2. The removal of the engine cover by the appellant before delivery exposed the engine further to water entry.
3. As part of his warning about the wood rot in the transom and engine bearers the respondent's principal said that his cost of $10,000 was an estimate only as it would need to be assessed and fixed by a shipwright, which he was not.
4. When the appellant said he could not afford that money and could it be put back together, the principal said he could but he didn't know how long it would last, that he thought it would be ok for a while but he was not a shipwright and didn't know how structurally sound it was.
5. In response, the appellant said in effect he would not be driving the boat hard. The principal then reiterated that the appellant should get a shipwright to look at it.
6. The principal and his employee took the boat for two sea trials before the one with the appellant; those first two trials were before and after the discovery of the defect in the carburettor.
7. The respondent's principal on the sea trial with the appellant warned the principal not to go any faster than 3000 rpm on the plane. The appellant put it up higher for one quick burst but clearly accepted the risk warning.
Finally, the primary member's conclusion that there was no proved loss was soundly open on the evidence, all the more so if it was prudently driven and checked by a shipwright as the respondent's principal suggested.
Accordingly, we consider there is no basis for a grant of leave and, in our view in any event, no material errors of fact in the primary members conclusions on matters grounding the orders that he made.
[6]
Outcome of substantive appeal
The appeal accordingly fails and must be dismissed.
[7]
Costs of appeal
Rule 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) applies the same costs rules as applied in the Division in which the primary decision was made. Rule 38 did not apply to the primary claim because it was under $30,000. Accordingly, special circumstances for an award of costs must be demonstrated, under s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA). CATA s 60(3) sets out examples of what may constitute special circumstances.
The respondent sought costs of the appeal. The respondent said that the grounds in CATA s 60(3)(c) and (e) were made out. Respectively, these were that there was no tenable basis in fact or law, and the appeal was frivolous, vexatious, misconceived or lacked substance.
We agree with the respondent that the appeal grounds not pressed at the start of the hearing were vexatious, misconceived or lacked substance, but they do not appear to have occupied any substantive time in preparation (from the material presented to us) and self-evidently did not at hearing.
The other grounds of appeal were not untenable, even if limited in prospects. We have sympathy with the respondent, who obtained legal advice, did not receive costs when the matter was fully contested at primary level (whether or not they were asked for we do not know but no costs were appropriate because all issues were fairly in contest), and then was put to further expense on resisting an appeal with limited prospects given the primary findings. On balance though, we consider that the prospects on appeal were not so poor that the test for special circumstances is met, and therefore do not award the respondent costs of the appeal.
[8]
Orders
The orders we accordingly make are as follows:
1. Leave to appeal is refused.
2. Appeal is dismissed.
3. Make no order as to the costs of the appeal.
[9]
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: 12 September 2019