Cao v Lui

NCAT Appeal Panel|2014-09-23

Introduction

The appellant is the owner of premises at 13 Newhaven Avenue Blacktown ("the Premises").
On 8 October 2013, the appellant contracted in writing with the respondent for the respondent to undertake building works at the Premises, including construction of a granny flat, four rooms, one kitchen and one bathroom for a fixed price of $25,000.
The respondent was not relevantly licensed to undertake all the works disclosed in the contract and the work was uninsured.
The appellant paid the respondent $4000 as a deposit and the respondent proceeded with the works. The appellant paid the respondent a total of $6651.
The appellant contended that the works performed by the respondent were defective and refused further payment. The respondent purported to terminate the contract for failure to make progress payments.

Notice of Appeal

On 12 June 2014, the appellant lodged an appeal within time pursuant to Rule 25(4)(a) of the NCAT Rules.
The appellant challenged the order that the respondent is to pay him $590.73 and sought orders that the respondent pays for the costs of: 1. Removal and rebuilding of the concrete slab; 2. Redoing the plumbing including paying the costs to inspect the sewer pipe work; and 3. Redoing the external cladding.
It is noted that, for the reasons that follow, the Appeal Panel does not proposed to make such orders, but rather, has determined that the matter ought be remitted to the Consumer and Commercial Division, Civil and Administrative Tribunal (NSW) for a rehearing according to law.
In the Notice of Appeal, the Appellant was required to indicate in section 12B of the form whether he was seeking leave to appeal. He stated that he is doing so. The requirement for leave to appeal is dealt with in s 80 of the Act, which relevantly provides: (1) An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made. (2) 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.
The decision that the appellant is seeking to appeal was a final decision (see the definitions in s 4(1) of the Act). The appellant can only appeal as of right from the Tribunal's decision on a question of law. Otherwise, leave to appeal is required (s 80(2)(b)).
The appellant seeks leave to appeal on the ground that he has suffered a substantive miscarriage of justice because: 1. The decision was not fair and equitable; and 2. The decision was against the weight of the evidence.
The basis of the appeal is, in short, that the Tribunal failed to accord procedural fairness to the appellant and failed to give adequate reasons for the decision.

Directions

On 13 August 2014 the Appeal Panel, constituting Wright J, President and S Westgarth, Deputy President made the following orders for the preparation of the matter for hearing of the appeal: 1. The appellant file and serve any written submission and other material to be relied on before 27 August 2014; 2. The respondent file and serve his reply to appeal, any written submission and other material to be relied upon on or before 10 September 2014; 3. The appellant file and serve any written submissions and other material in reply on or before 17 September 2014.
It is noted that the respondent did not comply with the directions and his submissions were provided a week late, on 17 September 2014. The appellant asserted that the material was provided late, however he did not seek an adjournment in the circumstances and did not assert that there was any material that he could not deal with at the hearing of the appeal.
The Appeal Panel has taken into account the material filed by the respondent in determining the appeal.

The Appellant's Contentions on Appeal

In support of his application for leave the appellant, in summary, asserts as follows (11B Notice of Appeal): 1. The Tribunal Member's finding, that the translation of the contract has only minor differences which are not material, cannot be sustained in light of the evidence that on the appellant's version payment need only be made after the works were completed, and on the respondent's version payment was required prior to completion and that the Tribunal was required to make a finding of fact as to which was the correct translation of the contract; 2. The Tribunal's finding that the respondent terminated the contract for failure to make progress payments cannot be sustained in light of ground (1) above. 3. The Tribunal's finding that the appellant had failed to make the required progress payments cannot be sustained in light of the appellant's payments of $3000 and absent a finding of fact in respect of the translation of the contract; 4. The respondent's request for payment for the vinyl cladding was unsustainable in light of the Office of Fair Trading's documents regarding payment for works not performed and in light of s.92 of the HB Act 1989 regarding demands for payment by uninsured builders. 5. The Tribunal erred in stating that the appellant had referred to a concrete slab as being for a barbeque area. The appellant asserts that this was referred to incorrectly in the respondent's expert report and that he was denied procedural fairness in respect of that matter. 6. The Tribunal erred in denying the appellant procedural fairness in respect of the expert evidence more generally, in that the Tribunal Member did not allow the appellant to lead evidence or submit fully in respect of relevant matters; 7. The Tribunal erred in accepting the evidence of the respondent's expert in circumstances where the appellant's expert was present at the hearing; the respondent's expert was not; the appellant wished to lead evidence from his expert; and to cross-examine the respondent's expert, which was denied, in particular; 1. The respondent's expert's opinion that the area (in which is was accepted that there was no vapour barrier installed), did not require a vapour barrier as the building was a "class 10" outbuilding and the Tribunal's finding that it was "a barbeque area" could not be sustained in light of the evidence, in particular the contract in which it describes, on both parties' versions of the translation, one granny flat, four rooms, one kitchen and one bathroom and does not describe a barbeque area. The appellant also submits that it cannot be sustained in light of the Tribunal's finding that the parties "contracted.... for a renovation including a granny flat, four rooms, one kitchen and one bathroom." 2. The Tribunal's finding that although the concrete floor may not be entirely level, that the appellant has failed to demonstrate why it is defective, cannot be sustained in light of the appellant's expert report to the effect that the concrete flooring was unlevelled to more than 10mm and in light of the failure of the Tribunal to allow the appellant to lead evidence from his expert or to cross-examine the respondent's evidence on that issue; 3. The Tribunal's finding that the appellant had failed to establish that the footings were defective such as to require their removal cannot be sustained in light of the Tribunal not questioning the appellant's expert at the hearing and appearing to accept that evidence. 4. The Tribunal's finding that the exposed concert reinforcement requires rectification rather than removal, as set out by the respondent's expert, cannot be sustained in light of the appellant's provision of uncontroverted evidence at that hearing and apparent agreement by all parties that there is no reinforcement to the centre of the slab. 5. The Tribunal's preference for the evidence of the respondent's expert that there was no evidence of the pipe size as recorded by the respondent's expert or that that no evidence was presented as to what the water feed (using the pipe) was for and the reasons for it being defective, cannot be sustained in light of the photo produced by the appellant's expert in evidence showing it to be under 20mm diameter, by his reference to the Australian Standards in that regard and in light of the reference in the contract to the pipes being for hot and cold water; 6. The Tribunal's finding that the appellant had not established any defects in the failure to install a moisture barrier inside the cladding of the external wall lining could not be established in light of the appellant's expert's evidence; 7. The Tribunal failed to take into account the time taken to complete the concreting work, leading to "honeycombing" in the slab, in finding that the appellant had not established that the concrete slab was defective; 8. The Tribunal failed to take into account the need to replace the sewer pipes and the need for further inspection in light of the fact that the respondent was not licensed as a plumber.
Further, in support of the appellant's application for leave, in summary he submitted that the Tribunal's decision was not fair and equitable on the following grounds (12B Notice of Appeal): 1. The Tribunal member failed to accord procedural fairness to the appellant in not allowing him to question the opinion of the respondent's expert as the respondent's expert was not present at the Tribunal hearing; 2. The Tribunal member failed to accord procedural fairness to the appellant in preferring the opinion of the respondent's expert in circumstances where he had not been cross-examined and the preferable findings were not put to the appellant's expert; 3. The Appellant substantially repeats the particulars set out at paragraph 20(7) above; 4. The Tribunal did not find that there was no reinforcement to the centre of the concrete slab, despite this not being in issue between the parties at the Tribunal hearing. In those circumstances it was not fair and equitable for the Tribunal not to determine that the whole slab required removal.
The appellant also relied on documents provided to the Tribunal on 27 August 2014, setting out the alleged defects.

Finding as to Whether or not Leave is Required

Despite the appellant's application for leave to appeal, any appeal in respect of an allegation that the Tribunal Member failed to give adequate reasons, is a question of law, in respect of which leave is not required: Pettit v. Dunkley [1971] 1 NSWLR 376; Papps v Police (2000) 77 SASR 210; Perkins v County Court of Victoria (2000) 2 VR 246; Byrnes v. Barry (2004) 150 A Crim R 471; Mountford v. Magistrates Court of South Australia (2006) 95 SASR 103.
Similarly, a failure to accord procedural fairness is an error of law in respect of which leave is not required. As Deane J said, in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 367: If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably ... When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.

The Respondent's Contentions on Appeal

The respondent lodged a Reply to Appeal dated 27 June 2014 on 3 July 2014 in which he asserts that: 1. He disagrees with the appellant's opinions expressed in the Notice of Appeal; 2. The translation of the agreement was cross-checked and discussed at the hearing before the Tribunal; 3. The appellant owes the Respondent $439, which is the "factual foundation" for terminating the agreement; 4. "An agreement is different to a contract". The respondent refers the Appeal Panel to his documents submitted at the hearing before the Tribunal in May 2014; and 5. In the hearing, the Tribunal member has investigated, questioned and discussed all aspects of the case.
The respondent accepts the Tribunal's order made on 29 May 2014 and supports the Tribunal's orders, full reasons and decision.
In his Submissions dated 10 September 2014, but provided on 17 September 2014, the respondent submitted in summary as follows: 1. The two contracts, as interpreted, contained "small" differences, which were not material; 2. Although the Tribunal Member did not deal with the law in respect of which the contract was said to have been terminated, he was entitled to find as a matter of fact, after hearing the evidence, that the contract was terminated; 3. The submissions in respect of the Office of Fair Trading are irrelevant; 4. The Tribunal was not dealing with the refund of any monies said to be owing to the appellant; 5. The Tribunal was entitled to come to the findings it did in respect of the expert evidence, is entitled to inform itself as it sees fit and to apply appropriate weight or prefer one expert over another, and the fact that the respondent's expert was not present for cross-examination has no bearing on this question, so long as procedural fairness is afforded to the parties; 6. The Tribunal Member gave reasons why he preferred the respondent's expert evidence at paragraph [7] of the Reasons and the Tribunal Member is not obliged to address and reconcile every contradiction or inconsistency in the evidence: citing Soulemezis v. Dudley (Holdings) Pty Limited Pty Ltd (1987) 1 NSWLR; 7. Collins v. Urban [2014] NSWCATAP 17 deals with the Tribunal's duty to publish reasons and the respondent relevantly accepts that a substantial miscarriage of justice may have been suffered where there is a "significant possibility or a chance which was fairly open that a different of more favourable result would have been achieved for the appellant had the relevant circumstances not occurred" and that where there has been a denial of procedural fairness, the decision below can be taken as not being "fair and reasonable".

The Conduct of the Appeal Hearing

The hearing by the Appeal Panel took place on 23 September 2014.
Both parties were to be assisted at the hearing by Mandarin interpreters. However, for reasons unknown to the Appeal Panel no such interpreters were available.
After questioning from the Appeal Panel, the parties made it clear that they wished to proceed in the absence of the interpreters. The appellant made further oral submissions in English in line with his written material and the respondent made it clear in English that he was content to rely on his written submissions. It is noted that the respondent's written submissions were prepared by a solicitor.
Both parties were able to make themselves understood to the Appeal Panel and advised the Appeal Panel that they sufficiently understood the proceedings.
The Appeal Panel proceeded to hear the matter on that basis and to determine the appeal.
Subsequent to the hearing, on 1 October 2014, the appellant attempted to put further material before the Appeal Panel. Because both parties had submitted that they were content to rely on the material presented on 23 September and because the material was provided after the matter had been reserved for decision and without any consent from the respondent, the Appeal Panel determined not to take this material into account and not to read it. In light of the Appeal Panel's decision to remit the matter for hearing, no prejudice can be occasioned to the appellant by reason of the Appeal Panel's decision not to take this material into account.

The Question of Procedural Fairness in the Tribunal

As the respondent submitted, the hearing was conducted in the following circumstances: 1. Both parties attended the hearing; 2. The parties had the benefit of an interpreter, both to interpret the question asked by the parties and/or the Tribunal and to organize the interpretation of the Building Contract; 3. The parties gave evidence and provided expert reports to the tribunal; 4. The Tribunal published its reasons; 5. The Tribunal Member preferred the evidence of the respondent's expert; and 6. The Tribunal made findings of fact after the evidence was heard.
However, that submission does not address what is, in the Appeal Panel's view, the principle ground of the appeal, and one which if established would require the appeal to be allowed. The appellant submits that he was precluded by the Tribunal Member from addressing the apparent contradictions or inconsistencies in the evidence prior to finding against him. Indeed, nowhere in any of the submissions provided by the respondent is there any suggestion rebutting the Appellant's claims that he was so precluded.
The duty to accord a person procedural fairness arises because the power involved is one which may "destroy, defeat or prejudice a person's rights, interests or legitimate expectations": Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598; 97 ALR 177; (1990) 65 ALJR 167; 21 ALD 651. The content of the duty in a particular case depends upon the circumstances of the case and the nature of the power being exercised: Kioa and Ors v West [1985] HCA 81; (1985) 159 CLR 550 at 585 and at 612-615; (1985) 62 ALR 321; (1986) 60 ALJR 113; 9 ALN N28.
In Kioa Gibbs CJ stated that "if the rules of natural justice were applicable, the appellants were entitled to a fair opportunity to correct or contradict any relevant material prejudicial to them." Mason J also acknowledged that a fundamental rule of natural justice required that a party "is entitled to know the case sought to be made against him and to be given an opportunity of replying to it", and "if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter". Brennan J similarly observed that "[a] person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters to his interests which the repository of the power proposes to take into account in deciding upon its exercise."
Although Kioa was determined in the context of the exercise of ministerial power, a fundamental requirement of procedural fairness is that a party subject to the possibility of an adverse determination to be made on the basis of particular documents or material, should know the case against it, and relevantly in this case, be afforded an opportunity to respond.
In Collins v. Urban [2014] NSWCATAP 17, the Appeal Panel comprising of Wright J, President, S Westgarth, Deputy President and M Harrowell, Principal Member, commencing at [40], held in respect of hearings before the Tribunal with respect to matters of procedural fairness, that s 38(5)(c) of the NCAT Act requires that the Tribunal "take such measures as are reasonably practicable ... to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": Collins at [40].
Paragraphs 6 and 7 of the Reasons are in the following terms: 6. The applicant submitted two expert reports which were written by the same inspector and that inspector appeared at the hearing. The report concluded that the works which have been completed have not been completed to Australian Standards and that the estimated rectification works are $20,627.20. The report included a scotts schedule. 7. The respondent submitted that his works were not defective and that it was the applicant who owed him money. In that regard, no application was commenced by the respondent. He also submitted an experts report. The respondent's expert was not present at the hearing. The report of the respondent builder was much more detailed and although he did not appear, where the evidence differed the Tribunal preferred the evidence in the report of the respondent's expert. The report of the applicant was based on generalized statements and many of the standards he referred to were not included or were broad.
In circumstances where lack of detail was the ground for rejection of the applicant's expert evidence, where the appellant's expert was present at the hearing, and where the appellant wished not only to provide further detail from his expert witness but also to cross-examine the respondent's expert (matters which the respondent does not appear to dispute), the Tribunal has not, in the view of the Appeal Panel, taken appropriate steps to ensure that the appellant had a reasonable opportunity to present his case.
In doing so, a substantial miscarriage of justice may have been suffered as the Appeal Panel finds, that there is a "significant possibility or a chance which was fairly open" that the appellant may have achieved a more favourable result in respect of either one or more of his individual claims. For example, had the appellant been able to pursue the details of his claim with respect to the removal of the concrete slab, there is a significant possibility that his claim would have been significantly enhanced. Duty to Give Adequate Reasons
Although, in light of the decision of the Appeal Panel in respect of the failure to accord procedural fairness to the appellant, it is not strictly necessary to decide this issue in allowing the appeal, the Appeal Panel also finds that the Tribunal Member failed in her duty to give adequate reasons.
In Collins, commencing at [47], the Appeal Panel set out a number of relevant principles with respect to the Tribunal's duty to give reasons, but more relevantly in this case, what those reasons must include, as follows: A written statement of reasons for the purposes of this section must set out the following: 1. the findings on material questions of fact, referring to the evidence or other material on which those findings were based, 2. the Tribunal's understanding of the applicable law, 3. the reasoning processes that lead the Tribunal to the conclusions it made. 4. Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party; 5. s 62 of the Act does not, define exhaustively when there is a duty to give reasons or the extent of that duty; 6. The findings of fact and legal reasoning of the decision maker at first instance must be discernable within the reasons to facilitate any appeal: Collins at [49], citing Pettitt v Dunkley [1971] 1 NSWLR 376 at 387 (per Moffitt JA, Manning JA agreeing); 7. Any such decision ought include not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision: Collins at [50] citing Pettit and Carlson v King [(1947) 64 WN (NSW) 6] per Jordan CJ in delivering the decision of the Full Court; 8. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: Collins at [53] citing Keith v Gal [2013] NSWCA 339 (per Gleeson JA at [109]), Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA. 9. If, however, the parties have the right to request written reasons but do not do so, this basis for generally requiring reasons to be given may be of less significance but it continues to apply: Collins at [53]. 10. Those duties to produce reasons in that form apply not only to Courts but also to other judicial or quasi-judicial tribunals or bodies: Collins at [52] citing for example Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372; and particularly to bodies such as the Tribunal: Sydney Supermarkets Pty Limited v Xu [2009] NSWADTAP 28 as cited in Collins at [54]. 11. It is clear that the duty to give reasons is a necessary incident of the judicial process. Without adequate reasons, justice has not been seen to be done, so that failure to give adequate reasons may be an error of law: Pettit v Dunkley [1971] 1 NSWLR 376, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-9 per McHugh JA, Mifsud v Campbell (1991) 21 NSWLR 725, Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. But the duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings. A trier of fact is not obliged to address, and reconcile, every contradiction or inconsistency in the evidence. The law does 'not require lengthy or elaborate reasons' but it is 'necessary that the essential ground or grounds upon which the decision rests should be articulated': Collins at [54] citing Sydney Supermarkets at [60] and Soulemezis v Dudley (Holdings) Pty Ltd per McHugh JA at 280.
In the Appeal Panel's view, the Reasons do not include matters in respect of the findings on material questions of fact, referring to the evidence or other material on which those findings were based, the Tribunal's understanding of the applicable law, or alternatively the reasoning processes that lead the Tribunal to the conclusions it made such as to allow the appellant to prosecute his appeal.
For example, the Tribunal Member, having found that the work was unlicensed and uninsured (at [4]), made no finding as to what impact, if any, this had in respect of the respondent's claim for payment. The respondent's case that the contract had been terminated depended on there being a valid claim for payment of the progress payments. The Tribunal Member made no findings of fact in support of her conclusion that the contract was at an end (at [20]), that is that it had been validly terminated. It is insufficient for the appellant's purposes to simply remark that the respondent terminated for failure to make progress payments (at [5]). It was necessary in the circumstances to make factual findings as to whether the respondent, being uninsured and unlicensed, as in a position to demand payment, which on the appellant's case was contrary to s.92 HB Act.
S. 92 of the HB Act (in conjunction with the Home Building Regulations 2004) provides as follows in respect of works with a contract price of more than $20,000 (which this appears to be): Contract work must be insured 92 Contract work must be insured (1) A person must not do residential building work under a contract unless: (a) a contract of insurance that complies with this Act is in force in relation to that work in the name of the person who contracted to do the work, and (b) a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, has been provided to the other party (or one of the other parties) to the contract. Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (2) A person must not demand or receive a payment under a contract for residential building work (whether as a deposit or other payment and whether or not work under the contract has commenced) from any other party to the contract unless: (a) a contract of insurance that complies with this Act is in force in relation to that work in the name of the person who contracted to do the work, and (b) a certificate of insurance evidencing the contract of insurance, in a form prescribed by the regulations, has been provided to the other party (or one of the other parties) to the contract. Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case. (3) This section does not apply if the contract price does not exceed the amount prescribed by the regulations for the purposes of this section or (if the contract price is not known) the reasonable market cost of the labour and materials involved does not exceed that amount. (4) If the same parties enter into two or more contracts to carry out work in stages, the contract price for the purposes of subsection (3) is taken to be the sum of the contract prices under each of the contracts. (6) To avoid doubt, this section extends to residential building work that is also owner-builder work.
In those circumstances the Tribunal Member was obliged to make a finding as to whether or not the demand for payment by the respondent was such that the contract could validly have been brought to an end in the way that it was. Furthermore, the findings at [20] and [22] of the Reasons require a finding of fact in respect of whether or not there has been a valid contract and/or a valid termination of the contract.
Accordingly, in the circumstances of this case and taking into account the nature of the jurisdiction being exercised, the particular subject matter of the decision and the fact that giving detailed reasons is not cost free, the Appeal Panel concludes that in a contested home building claim such as this one, the Tribunal Member's duty to record reasons has not been adequately discharged.

Leave to Appeal

As the Appeal Panel has come to the view that the two broad grounds relied on by the appellant are questions of law, then the appellant does not require leave. Further, for the reasons referred to above, the Appeal Panel is of the view that the appellant may have suffered a substantial miscarriage of justice because the decision of the Tribunal was not fair and equitable.
Where, as in this case, there is a significant possibility that the appellant may have lost a chance of achieving a better outcome than occurred by reason of the denial of procedural fairness, there is a miscarriage of justice: see albeit in the criminal context, Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 at 514 and Gallagher v R [1986] HCA 26; (1986) 160 CLR 392 at 399 and 402.
If the Appeal Panel is satisfied that the applicant may have suffered a substantial miscarriage of justice on those grounds, then the Panel may grant leave under s 80(2)(b) of the Act if it considers whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the Act.
By analogy, the relevant principles to be applied when deciding whether to grant leave to appeal has recently been considered in Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10. As set out in Collins at [84], the appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45], that it involves questions of public importance or matters of administration or policy which might have general application; or where a factual error that was unreasonably arrived at and clearly mistaken, or otherwise where the decision was not fair and reasonable.
Here there was a denial of procedural fairness in the way in which the proceedings were conducted, especially where the appellant was denied a reasonable opportunity to be heard or otherwise have his submissions considered, in breach of s 38(5)(c) of the Act. The Appeal Panel finds that, in the circumstances the decision was not fair and equitable within s 12(1)(a).
Furthermore, the Appeal Panel finds that there is material in the appellant's evidence to indicate that had the appellant been accorded procedural fairness, either by allowing him to challenge the respondent's expert or to examine his own expert in more detail, then this may have led to a more favourable result for him. In those circumstances, the Appeal Panel is satisfied that the appellant might have suffered a substantial miscarriage of justice.
In those circumstances, the Appeal Panel would, if leave was required, exercise its discretion to grant leave to appeal and allow the appeal.

Orders

For these reasons, the Appeal Panel makes the following orders: 1. The appeal is allowed. 2. The matter is remitted to the Tribunal Consumer and Commercial Division, Civil and Administrative Tribunal (NSW) for hearing in accordance with law. 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. Principal 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

Amendments 06 May 2015 - removed hyperlink references from coversheet 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: 06 May 2015

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