Cuscito v Ludovic Chaumont t/as L C Roofing and Carpentry

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, without listing exhaustively possible questions of law, the Appeal Panel considered at [13] the requirements for establishing a question of law giving rise to an appeal as of right. These include, but are not limited to whether:

• there has been a failure to provide proper reasons;
• the Tribunal identified the wrong issue or asked the wrong question;
• a wrong principle of law had been applied;
• there was a failure to afford procedural fairness;
• the Tribunal failed to take into account relevant (that is, mandatory) considerations;
• the Tribunal took into account an irrelevant consideration;
• there was no evidence to support a finding of fact;
• the decision is so unreasonable that no reasonable decision-maker would make it.

1. 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.
2. We have undertaken that exercise, but we have not identified any question of law. Nor was one claimed.
3. Accordingly, the appellant needs a grant of leave.

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.

Notice of Appeal

1. The appellant challenges the order of the Tribunal to dismiss his claim in relation to guttering and insulation, and in respect of the $1,000 insurance excess.
2. The appellant states his grounds of appeal as follows: 1) In the additional supporting evidence photographs pages 25/26/27 taken the 20July 2022 clearly show old dusty scattered insulation batts. The batts have not been replaced and I was charged $ 850 by the Respondent. 2) In my original application to NCAT I included on page 20 a letter from my insurer AAMI stating the amount of $1000 (the excess) would be deducted from the total cash settlement to repair damages caused by Ludovic. The claim was settled on the 19 July 2022 after I lodged my NCAT application on the 06 June 22. I am now able provide as evidence a final settlement letter from AAMI reflecting the $ 1,000.00 excess deducted from the total amount.
3. In relation to the guttering, the appellant says that the Decision was not fair and equitable for the following reasons: I believe were somehow overlooked and unfairly dismissed for the following reasons: 1) In the Home building application photos pages 28.29.and 30 show clear evidence of a sagging /bull nose veranda and sagging guttering replaced by the respondent around June 2021. In the photos 28, 29 and 30 the workmanship is so bad that the respondent himself claims in his evidence that they must have been photo-shopped. I am now including the same photo evidence on photo paper to prove him wrong and to bring to your attention the sagging bull nose veranda and sagging gutter. 2) In the Suncorp Assessment Report dated the 24 March 2022 I provided in "The additional evidence" the photo on page 12 shows the ceiling cavity inspection of my bedroom and some old insulation that was supposedly replaced in June 2021 by the respondent at the cost of $850.00. The Suncorp Report was generated by AAMI Ins to assess water penetration issues only. That photo in the report raised some suspicions and on the 20 July 2022 I took some additional photos of my ceiling cavity which I provided in "The additional Supporting evidence" to bring to your attention that the insulation was indeed not replaced, the respondent may have exchanged la few insulation batts but all that rubbish and dust and scattered dark insulation is obviously old land has been untouched for decades. At the 05 Aug hearing however, in his defence the respondent claims the photos must have been taken in 2021 before he commenced his work, he also claims I saw him replace the insulation. This is not correct, I did see some insulation on the back of his Ute but at no point did I see him carrying it on the roof. To prove the respondent wrong I am now providing the same photos but with a date to confirm they were taken in July 2022. I am also quite happy to allow the respondent to provide his own independent report as I have in the additional Supporting Evidence.

Reply to Appeal

1. No Reply to Appeal was filed by the respondent. However, brief submissions were received on 21 October 2022 which state: I respected the initial decision of the tribunal, although I did not agree I paid the monies to Mr Cuscito by the due date. Originally, I was asked to fix three leaks, Mr Cuscito was informed the roof needed to be replaced to fix this. As the costs of the roof could be afforded a discussion was had within a budget. The quote was agreed too to attempt to fix the leaks without replacing the roof, it was stated that this may not work, the building is old and requires a lot of work. It does not make sense to me why I was asked to complete other jobs if he was unhappy with the first. The total tax invoice was $11300 for three jobs, I was only paid $10000. I fle tI was helping a dear old man as I felt sorry for him. I wonder now if I was set up from the start. Outlay: Materials costs $6500 including GST Labour costs $4830 I have refunded Mr Cuscito $5550.00. Mr Cusito gets to keep the materials; I am out of pocket and my character has been thrashed over and over. The time of work to prepare and attend court is all taking its toll on me. In regards to the roof installation The whole ceiling space of 35 sqm was not replaced by installation only 22sqm. It does not make sense why I would put rubbish over the batts I installed.

Appellant's response

1. The appellant responded to the respondent's submissions on 31 October 2022. In summary, he relevantly submitted that:

• the respondent is not licensed;
• the front verandah and gutter "look terrible, they are sagging in the middle";
• the respondent was hardly present during the works, and "had no idea what took place";
• the respondent has no scruples, and has caused the appellant "a lot of stress" and sleepless nights.

Oral submissions

1. Both parties made oral submissions to the Tribunal which were of little assistance to the issues raised on appeal. This is because each party concentrated on retelling the evidence that was before the Tribunal, rather than dealing with the alleged errors in the Decision raised by the appellant.

Gutters and insulation

1. During the course of the appeal hearing the respondent flatly denied that he had not installed insulation. In other words, the appellant claimed that the respondent had not installed insulation, the appellant claimed that he had. As we explained, where the probabilities are balanced, a party has failed to prove their case. In our view, there was no error made by the Tribunal in failing to award any compensation in relation to the insulation. In any event, the Rooftek quotation, to which we refer below, makes no mention of insulation and could not be used to support an unquantified claim for compensation in relation to insulation.
2. As to the guttering, the only evidence relied on by appellant at the Tribunal hearing was the unsigned Rooftek maintenance quotation of 10 May 2022 in the amount of $7,923.50. This was explicitly referred to by the Tribunal, which stated that because the quote was "site unseen", the Tribunal was not satisfied that the quotation properly reflected the works required.
3. We agree. The unidentified person who prepared the unsigned quotation never attended the property to carry out an inspection and relied on information provided to the person by the appellant. It is difficult to see how the quotation provides any probative evidence to support the amount of $2,324 claimed for the guttering and insulation by the appellant on appeal.
4. We would not grant leave in respect of this matter.

$1,000 insurance excess

1. As to the $1,000 excess, the appellant says: Although I provided you a letter from AAMI my insurer that shows loss of $1000 for Insurance excess for the claim, it was dismissed. The insurance claim was settled on 19 July 2022 after I lodge my NCAT Application on 06 June 2022 and I am now able to provide you with a final settlement letter from AAMI reflecting the $1000 excess deduction that I would like refunded so I can finally attend to my internal repairs since October 2021.
2. The appellant's submission that there was evidence before the Tribunal from the insurer, which indicated that there was an excess payable by the appellant of $1,000, is correct.
3. However, we would not grant leave to appeal in relation to this point for the following reasons.
4. First, the subject matter of the insurance claim was the water ingress, the insurers assessor finding that: upon inspection of the bullnose metal roof over the front entry, ARC found that the roof sheets beneath the apron flashing have not been upturned. ARC believes that wind-driven rain is the cause of the water ingress that has occurred in both the top roof and the lower front roof.
5. The assessor recommended the following rectification: "1. ARC recommends the insured has the ends of the roof sheets upturned to prevent any further water ingress from occurring. 2. ARC recommends the insured has foam end fills installed to the front entry, bullnose roof to prevent further wind driven rain from gaining access at this point. 3. ARC recommends the insured has an additional flashing installed on the decorative parapet as there was deteriorated render within the area and small openings were present.'
6. Clearly this was all exterior rectification work in respect of which the insurer recommended (and paid) a net cash settlement amount of $7,397.67 (being $8,397.67 less the $1,000 excess) to the appellant.
7. Secondly, however, for the reasons stated in the Decision, the Tribunal ordered the respondent to pay the appellant $5,550. This is stated to be a refund of the monies paid by the appellant to the respondent "for roof repairs (to rectify pre-existing water leaks). The Tribunal does not explain why it awarded $5,550 in circumstances where it also found that the appellant accepted the respondent's quotation of $6,050 (including GST) for the roof repairs, but no point has been taken in respect of that matter.
8. But the Tribunal has not explained why it did not make some allowance for the work actually undertaken by the respondent, a matter commented upon by the respondent in oral submissions and in the respondent's written submissions: "I have refunded Mr Curscito $5550.00 [and] Mr Curscito gets to keep the materials", to which might be added, in circumstances where the appellant also received almost $7,400 rom the insurer for the work the subject of the application.
9. It is axiomatic that the respondent is entitled to be paid for the work that he did; if the work was faulty and needs rectification, the appellant having paid the respondent for its work, is entitled to receive damages for rectification.
10. We bear in mind that the appellant requires leave to appeal as there is no question of law. The appellant asserts that the decision was not fair and equitable. In matters involving an appeal from a decision of the Consumer and Commercial Division, cl 12 of Schedule 4 of the NCAT Act provides that the Appeal Panel's discretion to grant leave to appeal is only enlivened if the Panel is satisfied that the appellant may have suffered a substantial miscarriage of justice, relevantly, because the decision of the Tribunal was not fair and equitable. The principles to be applied in these circumstances are set out in Collins v Urban at [65] - [79].
11. The appellant needs to establish that he may have suffered a substantial miscarriage of justice by reason of the decision not being fair and equitable such that there was a significant possibility or a chance which was fairly open, that a different and more favourable result would have been achieved. It is generally necessary for the appellant to explain what its case would have been and show it was fairly arguable.
12. Even if the appellant establishes that he may have suffered a substantial miscarriage of justice in the sense explained above, the Appeal Panel then retains the discretion whether to grant leave under s 80(2) of the NCAT Act (see Collins v Urban at [80] - [84]).
13. We are not satisfied, for the reasons appearing above, that the appellant in all the circumstances suffered a substantial injustice. He appeared to be submitting that he was entitled to the recover the insurance excess as there were other outstanding matters which he needed to rectify, including the interior of his property. If that claim was not made either in the proceedings or in a claim to the insurer the appellant may be entitled to agitate those matters now. But he cannot do so as an ambit claim for damages in an appeal where that claim was not the subject of hearing before the Tribunal.
14. But even if were satisfied that the appellant had suffered a substantial injustice, we are not satisfied that the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact-finding process in such an unorthodox manner that it is likely to have produced an unfair result.
15. For these reasons we do not grant leave to appeal.

Other

1. As the Appeal Panel stated recently in Nikic v Volkswagen Group Australia Pty Ltd [2022] NSWCATAP 302: 74. … 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 Appeal Panel stated in Temple, in passages relied on by the respondent: 38. … Any decision to grant leave to appeal must be undertaken in a legally principled manner and not simply because, if we were hearing the matter anew on the evidence led before the Member, we might reach a different conclusion when considering that evidence (although in the present case that would not be so). 39. It is fundamental that an appeal on a question of fact does not provide and is not intended to provide an opportunity for an applicant dissatisfied by the result of a hearing at first instance to re-run the same case before an Appeal Panel. Yet, that is, in effect, what the present Appellants seek to do by identifying what they contend are contestable findings of fact by the Member. [1]
2. To put the matter another way, as indicated in the Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website): … an appeal is not an opportunity to have a second go at a hearing.
3. This appears to be what the appellant is seeking to do.
4. Leave to appeal should be refused.

Orders

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

Endnote

1. The reference to "Temple" is a reference to Temple v AMR Motors Pty Limited [2017] NSWCATAP 221. 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: 15 November 2022