Cui v Lin

Second preliminary issue - new evidence

1. Attached to the Notice of Appeal were a number of documents which were not before the Tribunal which the appellants wished to rely on at the appeal hearing. These documents were: 1. a bundle of seven emails between the parties (with other individuals being copied in). In summary, the emails were: 1. an email from an insurer to the first appellant, with the respondent and others copied in, dated 4 April 2022 ("Annex B" to the Notice of Appeal); 2. emails from "Frank" to the first appellant and the respondent (with others copied in) respectively dated 4 March 2022 ("Annex C" to the Notice of Appeal), 27 February 2022 ("Annex D" to the Notice of Appeal), 9 February 2022 ("Annex E" to the Notice of Appeal), 26 September 2021 ("Annex F" to the Notice of Appeal). 1. a copy of a "Notice of Council and PCA of Intention to Commence Work" dated 26 March 2021 and signed by the respondent ("Annexure G" to the Notice of Appeal).
2. The date range for the emails was 26 September 2021 to 4 April 2022. The date of Notice of Council and PCA of Intention to Commence Work was 26 March 2022. All those documents pre-date the hearing of 14 October 2022.
3. The first appellant explained in the Notice of Appeal that the relevance of these documents was that: … I didn't give direction to let other person receive money on behalf of Me or the Sydney Keystone Constructions Pty Ltd. It is the applicant's responsibility to prove that I have give him this kind of direction, and he cannot provide evidence. (3) Frank as a project manager is to help me on preparing the quote and contract, I didn't give him the authority to sign the contract and receive money on behalf of me. I don't know I need to give evidence for what I never done. It is the applicant's responsibility to give evidence if they said I have given such direction.
4. The only explanation offered to the Appeal Panel by the first appellant as to why the documents were not before the Tribunal was that "I don't know the process of the hearing. No Experience at that situation", which explanation appeared in the Notice of Appeal and was elaborated on at the appeal hearing.
5. In Chapman v McLaughin [2016] NSWCATAP 212 the Appeal Panel said at [37]: … The point of limiting fresh evidence to that which was not reasonably available at the first hearing is to ensure finality of proceedings. This means that it is in the interests of justice for parties to put forward all of their evidence as best they can at the hearing, as otherwise, if they were free to add fresh evidence after a case was decided, the proceedings would run the risk of not being finalised until after many hearings. This principle is of particular importance in the Tribunal because of the provisions of s 36 of the Act. That section requires the Tribunal to proceed to decide cases justly, quickly and cheaply.
6. In circumstances where the first appellant filed a bundle of documents for the Tribunal hearing (see Decision at [7]) and, in the case of the emails, the first respondent was a recipient, we are not satisfied that these documents were not reasonably available at the time of the Tribunal hearing: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111.
7. Therefore, we have had no regard to the evidence sought to be relied on at the appeal hearing that was not before the Tribunal.

Nature of an appeal

1. Section 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) sets out the basis upon which appeals from decisions of the Tribunal may be brought. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).

A question of law

1. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. whether there has been a failure to provide proper reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. whether the Tribunal took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; 8. whether the decision is so unreasonable that no reasonable decision-maker would make it.
2. In Prendergast the Appeal Panel also stated at [12] that, in circumstances where an appellant is not legally represented, it is appropriate for the Tribunal to approach the issue by looking at the grounds of appeal generally, and to determine whether a question of law has in fact been raised (subject to any considerations of procedural fairness to the respondent that might arise).
3. We have undertaken that exercise, but we cannot identify any error of law in the Notice of Appeal. Nor was one claimed in the appeal papers or at the appeal hearing. Accordingly, the appellant requires the leave of the Appeal Panel to bring the appeal.

Leave to appeal

1. Clause 12 of Sch 4 of the NCAT Act provides that, in an appeal from a decision of the Consumer and Commercial Division of the Tribunal, an Appeal Panel may grant leave to appeal only if satisfied that the appellant may have suffered a substantial miscarriage of justice because: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
2. The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel conducted a review of the relevant cases at [65]-[79] and concluded at 84 that: 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.
3. Even if an appellant establishes that they may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel retains a discretion whether to grant leave under s 80(2) of the Act. An appellant must demonstrate something more than that the Tribunal was arguably wrong: Pholi v Wearne [2014] NSWCATAP 78 at [32].

The Decision

1. Before setting out the grounds of appeal, is appropriate to summarise the content of the Decision.
2. The Decision commences with the Tribunal stating at [1] that: This is an application under the Home Building Act 1989 ('the HB Act") by Mr Lin (the applicant) against the builder retained by the applicant and his wife to build a house. The dispute between the parties arose because the builder issued an invoice in February 2022 but the home owner paid slightly less than half of that invoice and not the balance. As a consequence of not being paid in full, the builder communicated that it was terminating the contract, ceased work on site and did not thereafter return to site. The homeowner's application seeks an order that the builder complete the residential building work.
3. The Tribunal then summarises the evidence before it at [5] to [8]. Following that, at [9] the Tribunal finds that it has jurisdiction to consider the matter under s 48K of the Home Building Act 1989 (NSW) (HB Act) to hear and determine the matter.
4. At [10] to [63] the Tribunal sets out its relevant findings.
5. The Tribunal's consideration of the application, given its earlier findings, commences at [64]. A critical issue for the Tribunal was whether or not payments made to "Frank" by the respondent were made at the direction of the first appellant. The Tribunal stated at [69]: The Tribunal must decide whether to accept the applicant's version of events or Mr Cui's version of events in relation to whether the builder received payments or directed (through Mr Cui) that payments be made to Frank. Although the applicant was not able to provide written evidence of the direction from Mr Cui to pay Frank, the Tribunal accept that is what in fact occurred. I accept the applicant's evidence that he was orally directed by Mr Ciu to pay Frank. I do so for the following reasons.
6. The Tribunal's explanation of this conclusion are then set out at [70] to [82]. The Tribunal concluded at [82]: The Tribunal finds, on the basis of the above evidence, on the balance of probabilities, that the payments from the applicant's account set out in paragraphs [22] - [35] and 47] - 148] above, including the cash payments withdrawn from that account, were made at the direction of Mr Cui, which directions were given on behalf of the builder. To the extent the payments were received by Frank, the Tribunal finds, on the basis of the above evidence, on the balance of probabilities, that the payments were received on behalf of the builder.
7. The next issue considered by the Tribunal was the legal effect of a document signed by Mr Lin on 9 February 2022. The Tribunal found at [38] that that document stated: From now on Mr Lin agreed [sic] to pay $250,000 + GST to the Keystone Constructions Pty Ltd. Account Sydney Keystone Constructions to finish the rest of the work at ** Hardwood Ave Mt Kuringai".
8. The Tribunal concluded: There was no dispute that the signature on the 9 February 2022 document is that of the applicant. The applicant did not contend that there was no consideration to support the price variation. However, the applicant's wife did not sign that document. The applicant's wife was a party to the contract. The contract could not be varied without the consent of all parties to the contract. On this basis the Tribunal does not find that the contract was validly varied.
9. The Tribunal next stated: 84 The Tribunal has found that the 20 February 2022 and 28 February 2022 tax invoices were not payment claims that complied with clause 20 of the contract. It follows [SKC] could not rely on the non-payment of those tax invoices to terminate the contract and that the 31 March 2022 letter purporting to terminate the contract "on and from 30 March 2022" was itself a breach of contract, and probably a repudiation. 85. However, even [SKC's] conduct is properly characterised as repudiatory, the applicant has not terminated the contract. I consider that the applicant is entitled to that relief.
10. "That relief" was an order pursuant to s 49O of the HB Act to complete the incomplete work. The Tribunal considered that this was the appropriate remedy because Mr Lin sought that remedy and during the hearing Mr Cui indicated that finishing the work "for even" $250,000 plus GST "was very difficult", and that, "[i]n other words, damages would likely be more burdensome on [SKC]: Decision at [88].

Grounds of Appeal

1. The Notice of Appeal does not set out any grounds of appeal. What the appellants have done is as follows.
2. First, in the section of the Notice of Appeal which asks the appellants to explain why the Decision was not fair and equitable, the appellants refer us to annexures A to H. As indicated, we will take into account Annexures A, B and H.
3. Secondly, after summarising the evidence the parties gave at the Tribunal hearing and the documents they showed the Tribunal, the appellants, in answer to the question "What evidence should the Tribunal have given more weight to? Why?" state: "(1) The applicant try to avoid GST. The payments made to Frank Yu by the applicant show GST not paid according to the progress payment schedule. I have more evidence to prove the applicant try to avoid GST see annex: c (2) Paragraph 74 On order page 14. "I accept that the first two payments did not include GST". This prove the applicant try to avoid GST (3) Paragraph 64 On Order page 12: " the applicant also stated that he had SMS messages to the effect that Mr Cui directed that payments be made to Frank. The tribunal requested that these be retrieved during the luncheon adjournment. However, the applicant was not able to produce the relevant message." I never send this message. (4) Paragraph 38 On order page 8. "On 9 February 2002 the applicant signed a document". Mr Wen Tsan Lin signed this document, and the contract is signed by Wen Tsan Lin Only. (5) Paragraph 65 on Order page 12. " effect excluded the builder (ie Sydney Keystone Construction Pty Ltd) and use Frank to undertake the residential building work". I can provide mass evidence that the applicant engaged Frank directly. See annex: d (6) Paragraph 77 on Order page 13. " The signing of this document was unnecessary if the applicant had been paying as directed by Mr Cui and had been dealing with the builder throughout." The applicant didn't follow my direction for paying.
4. Thirdly, in the section of the Notice of Appeal headed "Significant new evidence is now available that was not reasonably available at the time of the hearing", after setting out that evidence, the appellants then answer the question "Why was this evidence (inducing documents) not available at the time of the hearing?", as follows: (1). I don't know the process of the hearing. No experience at that situation. (2). Paragraph 57 On order page 11. I didn't give direction to let other person receive money on behalf of Me or the Sydney Keystone Constructions Pty Ltd. It is the applicant's responsibility to prove that I have give him this kind of direction, and he cannot provide evidence. (3) Frank as a project manager is to help me on preparing the quote and contract, I didn't give him the authority to sign the contract and receive money on behalf of me. I don't know I need to give evidence for what I never done. It is the applicant's responsibility to give evidence if they said I have given such direction.
5. As indicated, we will not consider any new evidence.

Orders sought

1. The appellants state that the orders the Appeal Panel should made are: 1. Owner responsible for the work completed by Frank Yu, who is the subcontract [sic] engaged by the owner. 2. The owner pay the work done by [SKC]. That is the work done by [SKC] after Wen Tsan Lin signed the 09/02/2022 document.

Reply to Appeal

1. In his Reply to Appeal the respondent: 1. states that he supports the orders of the Tribunal; 2. opposes leave to appeal being granted; and 3. asks that the appeal be dismissed.
2. In a document attached to the Reply to Appeal Mr Lin provides a commentary to annexures A to I attached to the Notice of Appeal.
3. In conclusion, Mr Lin submits: As you can see, it's rather contradicting from his own words, it sounds like the Builder is finding ways again to get out of the contract again. I would like to make a note; after the Tribunal Order was enforced, the builder made it very difficult to work with, a way to frustrate our family so we choose terminate the contract, something he's hoping to achieve. Stage 4 money that was not supposed to be issued, as Stage 4 was already completed prior to Tribunal. We are moving forward with the work completed after Stage 5 (which is also after Tribunal Order was made). Obviously, we question him with the breakdown of the invoice of the items he completed after Tribunal Order, and he could not provide till this day, instead he turned around and stating OWNER is intent to delay the project. This does not make sense, as we all know owner needs to get this house done ASAP than anyone else, and now we are stuck with this attitude from the Builder. In addition, we specifically asked him to communicate with us before doing installation, as we want to know what he is about to do, based on the bad experience from him and what he is capable of. We are also entitled to what the material used in our house, however, he continues to push it to certifier, plumber and electrician, and that material he used has nothing to do with him. We have visited a few stores as advised by him, to obtain few quotations so he can place an order. The builder himself knocked it back to the suppliers that we as the owner is not paying him money? Once again, a builder with years of experience in the industry could not provide a breakdown of the invoice when requested by the owner, saying stock is not available. Clearly he has all the opportunities to place an order way few weeks ago, but instead he is wasting our valuable times.

Appellant's submissions

1. The first appellant attached seven pages of written submissions to the Notice of Appeal (being Annexure A). These submissions, in summary, state the findings of the Tribunal in pars [64], [67], [75], [78] and [83] of the Decision were wrong as being against the weight of the evidence or were based on lies of the respondent.
2. The submissions conclude: MR Lin engaged Frank as owner's subcontract to do the project, Sydney Keystone Constructions Pty Ltd do not take responsibility for the work done by Frank. Mr. Lin/Frank Yu is responsible for the work done by them. As agreed, from 26/09/2021, the payment should go to Sydney Keystone Constructions Pty Ltd account with GST and Let Sydney Keystone Construction Pty Ltd to do the work. Mr. Lin paid to Frank personally without inform me after that time. Mr Lin breaches the agreement. On 09/02/2022, Mr Lin signed the document and I start to do the work. When Sydney Keystone constructions Pty Ltd finish the plaster work, Mr. Lin agreed to pay 15% of the contract price, that is $80,850 include GST, the content of the invoice is agreed by Mr. Lin and he start paying the invoice. After paid $40,000, he told me he has finical problem and want to terminate the contract. Mr Wen Tsan Lin Breaches the agreement. (typographical errors as in original)
3. The first appellant amplified these matters in oral submissions. He emphasised that the respondent had lied to the Tribunal

Respondent's Submissions

1. As noted, the respondent supports the Tribunal's orders for the reasons set out in the Decision.
2. The appellant's son, whom we granted leave to represent his father at the appeal hearing, confirmed this position at the appeal hearing. He also submitted that it was the first appellant who had been lying, not his father.

Consideration

1. We shall consider each of the errors raised by the appellant.
2. The first error is in relation to par [64] of the Decision where the Tribunal stated: The [respondent's] evidence is that the withdrawals, electronic funds transfers and cheques that he identified, as set out above, were payments made to the builder for the construction of the home. The applicant says that he paid Frank, but says that this was done at the direction of Mr Cui. Those directions were said by the applicant to have been conversations and at one point during the hearing the applicant also stated that he had SMS messages to the effect that Mr Cui directed that payments be made to Frank. The Tribunal requested that these be retrieved during the luncheon adjournment. However, the applicant was not able to produce the relevant messages.
3. In summary, first appellant submits that the respondent was lying, and that no monies were received from "Frank", and despite the Tribunal requesting the production of supportive documents, the respondent did not produce any documents. It appears that the appellants are submitting that the Tribunal failed to give sufficient weight to the fact that no documents were produced.
4. We see no substance in that submission. The Tribunal carefully explained that it had to decide whether to accept the respondent's version of events (Decision at [69]), noting that the respondent did not provide written evidence of the direction of the first appellant to pay "Frank", but accepted the respondent's evidence on this issue for the reasons developed in pars [70] to [82].
5. The second error is in relation to par [67] of the Decision where the Tribunal states: When the Tribunal asked Mr Cui why he did not terminate the contract if he had been excluded and someone other than the builder was undertaking the work he said it was because his licence was on the job and the home owners warranty insurance needed the owners signature to be transferred. He also said he did not properly understand his legal rights (and by extension, those of the builder).
6. The first appellant submits that he did not terminate the contract because he did not receive any money from "Frank" and: [a]s the owner engage Frank as owner's subcontract to do the project, and Frank helps me get other projects, I want to help them quickly finish the project and get out of it. That is why I did not terminate the contract at the time;
7. We see no substance in this submission for the same reasons given in [53]. We note that the appellants rely on Annexure H, but we do not accept that that document, which was before the Tribunal and expressly referred to in the Decision, provides any further support to this ground of appeal.
8. We consider that the Tribunal's conclusion was one that was reasonably open to it.
9. The third error is in relation to par [75] of the Decision where the Tribunal stated: On the other hand, the vast majority of the payments from the [respondent's] account were by way of electronic funds transfers or cheque payments. Paying by way of electronic funds transfer or cheque payments is not consistent with seeking to avoid GST.
10. The appellant submits that the evidence before the Tribunal showed that the respondent did not want to pay GST. We note that the appellants rely on Annexure C, but we have had no regard to that document for the reasons given above.
11. The fourth error is in relation to par [78] of the Decision and the Tribunal's statement that "[i]t is unclear why the [respondent] signed the 9 February 2022 document. The appellants submit that: Mr Lin seek Frank's help, and Mr Lin engage Frank as owner's subcontract to do half of the project and let me do rest half of project. I mention the amount I'll do and take responsibility is $250,000 = GST.
12. Here the appellants rely on Annexures D, E, F and H. We have had no regard to Annexures D, E and F for the reasons given above.
13. We otherwise see no substance in this submission and consider that the Tribunal's conclusion was one that was reasonably open to it.
14. The fifth error is in relation to par [83] of the Decision where the Tribunal stated: The next issue is the legal effect of the document signed by the applicant on 9 February 2022. The text of that document is set out above. There was no dispute that the signature on the 9 February 2022 document is that of the applicant. The applicant did not contend that there was no consideration to support the price variation. However, the applicant's wife did not sign that document. The applicant's wife was a party to the contract. The contract could not be varied without the consent of all parties to the contract. On this basis the Tribunal does not find that the contract was validly varied.
15. The appellants submit that: On the ACE Building approvals letter, the owner's consent Signature is by Wen Tsan Lin. The contract was signed by Wen Tsan Lin only. That show Wen Tsan Lin is represent all owners to sign the documents.
16. That submission was based on Annexures G and I. We have had no regard to Annexure G as it was not before the Tribunal. Therefore, the appellant's submission in relation to Annexure G (namely that only the respondent signed it and therefore was authorised to sign Annexure H (which was before the Tribunal) falls away.
17. As to Annexure I, this appears to be a ledger written in Mandarin, and it appears that this document was before the Tribunal. However, the appellants describe this document as the "Contract", so it is not clear which document the appellants are in fact referring to. On balance, as the appellants refer to a signature of the respondent's it would appear that they are referring to the Contract.
18. We see no substance in this somewhat confusing submission.

Conclusion

1. In conclusion, to the extent that the appeal raises errors other than errors of law, we are not satisfied that any ground involves an issue of principle, a question of public importance, an injustice which is reasonably clear or that the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.
2. Leave to appeal in relation to the alleged errors is refused.
3. We note that an appeal to the Appeal Panel does not provide a losing party in the Tribunal below with the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]. And, as the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) relevantly states, "an appeal is not an opportunity to have a second go at a hearing".
4. It appears to us that the appellants are attempting to conduct his case all over again, this time with the benefit of additional evidence. As noted, no acceptable explanation was given to warrant the appellant being allowed to rely on any evidence which was not before the Tribunal.

Other

1. We conclude with the following observations.
2. First, the effect of this decision is that the second appellant remains under the obligation imposed by order of the Tribunal on 24 October 2022, namely that it complete all outstanding work under the contract dated 19 March 2021 between it the respondent and the respondent's spouse in a proper and workmanlike manner within four calendar months of the Decision (Work), that is by 24 February 2022.
3. Secondly, if time to complete the Work is required, the Tribunal has the power to amend the order by consent: see s 9(1)(a) of the Civil and Administrative Tribunal Regulation 2022 (NSW).
4. Thirdly, if an order of the Tribunal is not complied with within the period specified by the Tribunal, the person in whose favour the order was made (here the respondent) may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with: cl 8(2) of Sch 4 of the NCAT Act.

Orders

1. The Appeal Panel orders: 1. Leave to appeal is refused. 2. The appeal is otherwise dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 February 2023